DOMINIC CARTER, CRIME AND CHANGING PUNISHMENT IN AMERICA

AN ESSAY

A few months ago, I wrote a short article about Dominic Carter, the former New York 1 anchorman who allegedly beat his wife. I used Mr. Carter's story to illustrate how difficult it is to "prove" things in our empirically-based evidence system. Now, a State court in New York has sentenced Mr. Carter to an unusual punishment for attempted assault. This presents compelling new issues.

Just as Mr. Carter's case provided an excellent vehicle to discuss evidence law, his sentence now provides an excellent vehicle to discuss criminal penalties in modern America. Put simply, criminal penalties are changing in America. And they are drifting far from their traditional purposes. In my view, this is not a good thing.

According to the New York Post, Mr. Carter was convicted of attempted assault for pervasively abusing his wife since 1997. See N.Y. Post, Crying shame of jailed NY1 journo, Jan. 15, 2010 at 5. Although his wife denied that Mr. Carter beat her, the trial judge--Arnold Etelson--referenced police reports detailing marital strife in the Carter home for over a decade. Id. He sentenced Mr. Carter to 30 days' imprisonment. Id. He also ordered Mr. Carter to "stay away" from his wife for two years unless "he is prescribed medication by a psychiatrist able to assure the judge that [he] is well enough to see her." Id. Additionally, the judge gave Mr. Carter an article from New York Magazine detailing Matt Damon's views about "honesty and humility." Id. During sentencing, he told Mr. Carter: "Try some humility and honesty--it goes a long way." Id. Finally, the judge gave Mr. Carter's wife a sticker with the words "Attitude Makes the Difference. " Id. He instructed her to affix the sticker to her bathroom mirror so that Mr. Carter can see it when he visits. Id.

This is highly irregular judicial work. As a general rule, the criminal law forbids specifically defined conduct. The criminal justice system decides whether the defendant engaged in that conduct, then neutrally decrees the legal consequences. While morality animates all criminal codes, it is not for judges in the criminal justice system to pontificate about it, let alone publicly scold criminals for sport. This New York judge transformed his courtroom into an entertainment circus. And the spotlight was not on Mr. Carter--it was on the judge.

To start, it is strange that Judge Etelson characterized these facts as "attempted" assault. At common law--and under New York State law--an assault means an intentionally harmful or offensive touching. See, e.g. NYPL § 120.00, et seq. Any intentional crime can be "attempted" if the defendant intends to achieve the bad result envisioned in the criminal code, then takes some action corroborating that intent. But it is no longer "attempt" when the defendant achieves exactly what the law forbids. Here, the judge relied on police reports that detailed Mr. Carter's abuse. They all but verified that he had routinely hit his wife since 1997. If the judge believed those reports, then he should have convicted Mr. Carter of assault, not attempted assault. If Mr. Carter succeeded in harmfully or offensively touching his wife, it was no longer attempted assault. It was just plain old assault--and it's a worse crime than attempted assault.

But Judge Etelson's legal errors pale in comparison with his bizarre approach to criminal penalties. Traditionally, criminal penalties in America--as in all Western countries--target the body and property. The law assumes that people do not want to suffer bodily pain or lose their property, so penalties targeting those things ostensibly dissuade potential criminals from making "bad choices." The death penalty, imprisonment, fines and corporal punishment encompass everything a State can realistically do to penalize crime.

In modern America, imprisonment is the preferred penalty. Fines follow in second place. Most consider corporal punishment an archaic penalty; it really never happens anymore. The death penalty is more common. Still, State-ordered death is quite a rare punishment, too.

Judge Etelson did not give Mr. Carter a traditional punishment. Rather, he theatrically used Mr. Carter as an instrument. The only traditional part about Mr. Carter's sentence was his imprisonment. To some, thirty days in prison for attempted assault might appear harsh. But no one would call it bizarre. People expect either fines or imprisonment for crimes in America. The criminal justice system works in part because the public knows what to expect for certain transgressions. They trust judges to declare penalties that everyone expects. At the same time, they understand that even a convicted criminal is entitled to some dignity before the law. He need not be publicly humiliated, ridiculed or belittled in the courtroom. His prison term and social ostracism accomplish that on their own. It is not the judge's role to morally grandstand or scold. He simply must pronounce sentence. Legislators moralize when they write the laws. Judges should not.

What does a New York Magazine article or a sticker have to do with the law? When did Matt Damon become a legal authority? True, "honesty, humility and a good attitude" are virtues. But it is not the law's role to chastise people for failing to be virtuous. The law's only role is to decree whether a person acted in a defined way. It does not matter whether he was virtuous or not when he did. A defendant suffers enough when a judge declares the penalty for violating the law; he does not need to "rub it in" by acting the moralist. In fact, I argue that judges overstep their bounds when they do.

I understand that people like to see criminals squirm. But their convictions should make them squirm, not a judge's moralizing antics. If every judge took it upon himself to act like Judge Etelson, our criminal justice system would look more like a Catholic school than a neutral forum for just laws. In a word, it is not a judge's job to castigate a convict's moral failings. Moral failings are irrelevant to the law. And the law is the only thing that judges are constitutionally empowered to decide. Anything else they say is unauthorized fluff.

Judge Etelson-style grandstanding is not the only abomination that occurs in our criminal justice system. Now, criminal penalties also increasingly intertwine with psychiatry. Mr. Carter's case is no exception. In his sentence, Judge Etelson conditioned Mr. Carter's future with his wife on his agreement to take psychiatric medications. He also retained discretion whether to permit Mr. Carter to see her, depending on whether a psychiatrist could assure him that he was "well enough."

Are these judicial inquiries? If they are, do they not negate the State's moral outrage against Mr. Carter? After all, if the court believes that Mr. Carter needs psychiatric medication, that means he is mentally ill. If he was mentally ill at the time he struck his wife, that makes him far less morally blameworthy. After all, the criminal law depends upon free, rational choice for its moral strength. It is easy to condemn someone who knowingly makes a bad choice. But it is not easy to condemn someone who lacked the mental composure to make choices, let alone recognize they were wrong.

In this case, Judge Etelson tried to wear too many hats. He wanted to punish Mr. Carter for doing something that violated the law. But then he stepped back and ordered Mr. Carter to take psychiatric medications for his "mental problems." Put simply, judges are not psychiatrists. They are not social workers. It is not their job to monitor people's behavior once they serve their sentences. Nor is it their job to declare whether people are "normal." Rather, they are mere judicial officers, and it's not a complicated job. It is not about management; it is about judgment: Did the defendant do this or not? If he did, he goes to jail. If he didn't, he goes free.

There is undoubtedly a relationship between law and psychiatry. But a judge's only concern with psychiatry is to determine whether a defendant is mentally well enough to be criminally responsible. If he is, that ends the inquiry. In fact, judges must be extremely wary when dealing with psychiatry in criminal cases. After all, the entire rationale for criminal punishment collapses as soon as psychiatry shows that the defendant cannot make rational choices. In that light, judges should tread lightly when tampering with psychiatric issues. They might just discover that the "evil defendant" is really no ogre at all. He might just be "sick." And it is not proper to morally condemn sick people, let alone jail them for choices they could not make. For better or worse, the law only works on sane people.

I doubt that Judge Etelson understood all these issues when he entertained the news media during Dominic Carter's sentencing last week. From his perspective, he was in the spotlight and he was going to relish the moment. He was not content to play the neutral magistrate who calmly decrees the legal consequences of statutory violations. No, he had to play the scolding father, too, as well as the psychiatrist and the actor.

I do not like this. While it may be impossible to separate law from popular morality, judges should consciously try to do so. True, laws enshrine popular morality. But they are not moral weapons. They are technical guidelines. It does not matter whether a law-abiding citizen is moral; he must merely not violate the technical guidelines. Morality is about character. Law is about conduct. It is much easier to control conduct than character. And a judge simply declares whether the individual in question violated the conduct guideline.

Well, at least that's what a judge is supposed to do. American criminal law is changing for the worse because the distinction between morality and law is eroding every day. Just look at the Carter case. It's all right there to see.

ANIMALS CANNOT BE CRIMINALS

AN ESSAY

Several months ago, I wrote an essay outlining the relationship between moral choice and the criminal law. http://reasoncommercejustice.blogspot.com/2009/03/good-bad-or-just-sick-why-we-punish.html. I concluded that the criminal law implicates public morality in a way that other legal doctrines do not. Specifically, I pointed out that our society relishes the opportunity to pronounce both legal and moral judgment on "deviants" who make "bad choices." Finally, I noted that in some cases, it is impossible to channel moral outrage against certain trespassers--particularly the mentally ill--because they do not possess the capacity to rationally make "good" or "bad" choices.

Yet our society enjoys criminalizing things. It is an easy way to express condemnation for shocking outrages, even if it is not the most effective response. When we pursue someone as a "criminal," we collectively say that the he "broke from the moral norm." We justify his punishment by referencing his bad moral choice. Then we feel good about ourselves when he suffers for daring to violate the moral standard. Choice is the touchstone: Criminals know the behavior that society expects, yet they knowingly choose to violate it. In this sense, the criminal law acutely relates to popular morality.

Criminal sanctions make rational sense in two cases. First, there is the moral function. Under the "morality" theory for punishment (originally championed by Immanuel Kant), the criminal law prescribes exactly enough punishment to match the moral guilt in the actor's choice. The more shocking the choice, the worse the punishment. The morality theory focuses on individual choices; it envisions a direct confrontation between the law and the criminal. Punishment in this case does not aim to intimidate others; it is a discreet affair between the sovereign and the trespasser. True, society looks on and judges the moral deviant. But it serves no utilitarian purpose beyond venting moral outrage against the individual criminal. The "morality theory" has a significant role in the American justice system, but it is even more prevalent in civil law countries like Germany and France.

In the second case, the criminal law performs a strictly utilitarian function. Under the utilitarian theory, criminal law uses punishment against one man in order to frighten others from committing the same infraction. This is called "deterrence." Its focus is not moral; it is practical. Society does not like criminal choices because they disrupt the social order and cause damage to others. Society would simply like to see fewer criminal choices, regardless of whether the criminal acknowledges his moral failing. Deterrence is all about numbers: The criminal law performs a "practical" function if it reduces the number of robberies each year. Morality is not the issue; the criminal law just wants people to refrain from making choices that hurt others. In this sense, it is "useful" for everyone in society.

So how does the criminal law induce autonomous individuals to refrain from making certain choices? Simple: It threatens punishment to anyone who dares to make the choice. It assumes that people are rational actors. It assumes that they will engage in a cost-benefit analysis before making any choice. It also assumes that they do not like punishment, so they will not make choices they know will lead to it. When the criminal law aims to fulfill a deterrence function, it is not so much concerned with the individual criminal who suffers. Rather, it is much more concerned with all the potential criminals who watch the condemned man suffer, then say to themselves: "I do not want to meet the same fate." If the punishment inspires fear in those who otherwise might have committed the same crime, it serves its purpose.

Deterrence has always been an overt goal in the Anglo-American criminal law tradition. But it has fallen into disfavor in civil law systems. The German system specifically disavows any intention to deter future criminals by punishing present ones. Kant said that using one man as an instrument to frighten others demeaned human dignity and autonomy. That sentiment has found traction in Western Europe.

But no matter what punishment system a country adopts, the criminal law still assumes that people will act rationally. If a person cannot make rational choices, he cannot know whether his choice will violate an "intuitive moral standard." He also cannot make a cost-benefit analysis before deciding whether to commit an act that will injure another. And most of all, the criminal law only works on human beings.

This is not a facetious observation. Just this week, prosecutors in Connecticut actually deliberated whether they should bring charges against a chimpanzee that brutally mauled a woman last year. They also deliberated whether they should charge the chimp's owner.

What foolishness. The fact that prosecutors even entertained the proposition to charge an animal with a crime reveals a gross misunderstanding of the criminal law's basic functions. It would serve neither a moral nor a utilitarian purpose to punish an animal. After all, animals do not make rational choices; they know only instinct. They cannot grasp intuitive human moral teachings, nor can they feel fear when they see a fellow animal punished for making a "choice." Indeed, we might even wonder whether animals make "choices" at all in the way humans understand the word. Animals do not assimilate information as humans do. Nor can they learn to adapt their behavior to meet accepted "social norms." How can the law serve a purpose when the subject cannot even use language? Law must communicate before it can have any beneficial effect on society. Animals do not communicate with language. Thus, it is absurd to even consider using criminal penalties against them when they do something outrageous.

Still, Connecticut's debate about prosecuting a chimpanzee reveals a bothersome issue. Specifically, it reveals our society's reflexive--and ridiculous--propensity to use the criminal law to address any conduct we find abhorrent. In recent decades, States have greatly expanded their criminal codes. When there is a new social issue that arouses people's anger or disgust, there is an immediate push to criminalize it. Someone doesn't wear a seatbelt? Make it a crime. Someone texts while driving? Make it a crime. Someone doesn't inspect a restaurant every two weeks? Make it a crime. Someone forgets to feed their child lunch? Make it a crime. Someone did not clean their apartment? Make it a crime. Someone puts recyclables in the trash? Make it a crime.

In short, by making all objectionable conduct potentially criminal, States have diluted what it means to make "criminal choices." They have also shown that people just like taking revenge on things, even if it does not seem reasonable.

This explains why Connecticut prosecutors thought about prosecuting the chimpanzee. When something outrageous happens--like a chimpanzee chewing off a woman's face--people in our society rush to assign blame and take revenge on the culprit. This makes sense from a human perspective; human beings naturally thirst for revenge when injured. Oliver Wendell Holmes noted in The Common Law (1881) that both criminal law and compensation law flow from the natural human anger that arises when people get hurt: When a person accidentally slams his hand in a door, he kicks the door. Or when a branch falls on a man, he burns the tree. People want to take revenge against things that hurt them, even if they are inanimate, and even if it would serve no useful or moral purpose.

Criminal law is not the same thing as natural human revenge. It is a human invention with a human focus. It enforces human norms and aims to influence rational human choices. It makes no sense to apply it to anyone--or anything--that cannot make rational choices. If the criminal law cannot either: (1) Express moral outrage against a person who knew or should have known he made an intuitively "bad choice;" or (2) Realistically frighten potential criminals by punishing a convicted criminal, then it makes no sense to apply it. Animals cannot know they make "bad choices." They do not have the capacity to grasp complex verbal communication, let alone subtle moral principles. They also cannot be frightened from acting in ways that injure humans. This is why it is utterly pointless to prosecute an animal.

Now, that does not mean humans do not feel a natural desire to take revenge against an animal that hurts them. Just as people burn trees that fall on them, they can kill animals that pose a danger. But taking bald revenge on an animal is very different from prosecuting it, then punishing it consistent with law.

For better or worse, the criminal law has come to signify "revenge" in our society. True, the criminal law undoubtedly sates the natural human craving for revenge in many situations. But it would behoove us to remember that the two concepts are not entirely coextensive. Understanding the difference saves us from embarrassing spectacles, like seriously debating whether to hale a chimp into court to stand trial.

JUSTICE ALITO REAFFIRMS HIS COMMITMENT TO SENSIBLE AMERICAN CRIMINAL LAW

WISDOM FROM OUR LEARNED SUPREME COURT JURISTS

By : Mr. Samuel A. Alito, Associate Justice, United States Supreme Court (2006-present) ; Former Circuit Judge, United States Court of Appeals for the Third Circuit (1990-2006); United States Attorney for the District of New Jersey (1987-1990); United States Department of Justice (1981-1987); Federal Prosecutor (1977-1981); Graduate, Yale Law School; Clear Moral Visionary; Charter Member, The Federalist Society; Founding Member, The Anti-Drug-Offender Institute of New Jersey; Board President, The Association of Justinian Lawyers for the Immediate Execution of Child Molesters Upon Suspicion Alone, Constitutional Qualms Notwithstanding, et alias honores.

Every day, I learn to love our American Republic more because Americans understand how to treat criminals. I have dedicated myself to public service since early adulthood, and the longer I live, the more I learn to respect our justice system. Put simply, American criminal law is great because it disrespects criminals—and criminals deserve no respect because they have banished themselves from society.

Criminals have no place in American society. We have an obligation to punish criminals severely. If individuals violate the ground rules that hold our society together, they deserve no grace from our State. In fact, our State has a duty to harshly punish criminals for several reasons. First, we want an orderly society. When the law harshly punishes criminals, we not only remove dangerous threats from our midst; we also send a clear message to other would-be lawbreakers that we will hunt them down and make them suffer. Second, we want a moral society. As an avowed Federalist, I believe the People have the right to enshrine their moral ideals in law. They have a right to criminally punish immoral vagabonds, ruffians and people who do not fit in. As a Federal judge, I respect the States. I refuse to interfere with States’ efforts to punish vicious thugs, porn peddlers, crack pushers and public urinators, except in cases in which the States do not punish conduct I find morally disgusting. In such cases, I do not support the States; rather, I punish criminals consistent with my own values as a Catholic, Republican, Yale-educated jurist in public service. In brief, American criminal law targets recalcitrant rebels who lost the right to live among us. We view criminals as dangers to be expunged. We have a great system. I am proud to serve it.

Yet there are Nations on earth that do not see the light. As a scholar, it is my duty to learn different perspectives about the law. Although America is the greatest country in the world because we believe in "freedom and the dignity of every life" (see State of the Union Speech of President George W. Bush, January 29, 2002), we can learn various new approaches to issues by studying other countries. Occasionally, Europe will devise a good idea about electronics or internet commerce. But in most cases, I have found that European ideas are dangerous, especially in legal and social fields. I read legal texts from many legal traditions. Thanks to my study, I have learned that American criminal law is definitely the best. European approaches to criminal law shocked me. And they should shock every American. Nonetheless, I am glad that I studied European law. In the end, I learned that there is no place like home—especially when it comes to dealing with criminals. Europeans forgive and forget. In America, we crucify and bury our scum. That’s the difference.

To illustrate, consider Germany’s Criminal Code (Strafgesetzbuch). In recent decades, Germany transformed from a National Socialist dictatorship into a liberal, federal republic that prizes self-determination, human dignity, social welfare and progressive thought. In so doing, it repealed harsh criminal laws and replaced them with mild, weak social “controls.” Through my extensive study, I learned that Germany prefers to tap criminals on the wrist rather than make them suffer. In so doing, the State disrespects morality, insults crime victims and lets wretched hooligans escape justice. In my view, this is a national disgrace. And the Germans should be ashamed of themselves, especially given their proud tradition of strict, effective penalties for even minor crimes (i.e., guillotine for distributing critical political leaflets; shooting in the back of the head for communist leanings, etc.).

To understand why German criminal law is so bad, we must uncover its stated principles. In his Introduction to the German Criminal Code, Dr. Thomas Weigend, a law professor at the University of Cologne, provides a good beginning: “When the law provides for the deprivation of liberty or property if certain rules are violated, it shows that society considers it absolutely necessary to adhere to these rules.” Einführung, Strafgesetzbuch, 45. Auflage (München: Deutscher Taschenbuchverlag 2008)(hereinafter “Introduction to the Criminal Code”) p. 9. I cannot argue with this assertion. In America, too, we believe that every society has a right to imprison or fine people who transgress against “extremely important” social rules. Dr. Weigend correctly points out that: “Every society needs an opportunity to express its moral disapproval for severe violations against the protected interests of others or the interests of the community.” Id. I could not agree more. Every society has both a right and a duty to condemn those who deviate from acceptable community standards. American communities must punish lawbreakers to remind everyone what is right and wrong.

Yet after a promising beginning, Dr. Weigend veers into dangerous territory. Concerning punishment objectives in the German system, he writes: “Criminal convictions…do not devalue the perpetrator's person,” and that criminal penalties serve the “notion that a convict should not be permanently excluded from society; rather, the State should make it easier for him to make his way back to a responsible life. In this sense, modern-day criminal law in the Social State of the German Constitution is unconditionally obligated to the principle of humanity.” Id.

This is utter nonsense. In America, we do not look with munificence on convicted criminals, nor do we accord them “humanity.” By deviating from fundamental social rules, criminals lose their right to be treated as citizens, let alone with humanity. They are no longer humans; they are criminals. Unlike the Germans, we believe that social miscreants should be permanently excluded from society; we reject wholeheartedly the idea that the State owes criminals the duty to “make it easier for them to make their way back to a responsible life.” In America, the State does not give anything to anyone, even to law-abiding citizens. If anything, the State takes away. It defies imagination to suggest that the State has an obligation to provide criminals a way “back to a responsible life.” The State does not even have an obligation to provide education or health care, let alone the “social means to get your life together.” In short, you only get one shot at life in America. If you mess it up, that’s your problem, even if you are not a criminal. The State does not help anyone find their way in life, let alone lawbreakers who trample on society. The State does not exist to help its citizens; it exists merely to provide a stable environment in which to do business. In short, I find it beyond absurd that Germany “obligates” itself to “humanity.” Criminals do not deserve such indulgences. They are the worst of the worst. If anything, they should be treated inhumanely, not humanely.

I hate criminals. It gets me really angry when I learn that foreign law treats them with respect. We have a duty as a civilized people to make criminals suffer for visiting harm upon our society. They do not belong among decent people. Criminals violate everything sacred about American life: Decency, hard work, thrift, sexual propriety, moral living, financial responsibility, honesty, goodness, compassion, generosity, forgiveness, mercy and Christian caring. When criminals rape, kill, steal, defraud and defile, they do not care about the pain they inflict on their victims. Yet the Germans overlook that pain and slap these barbarians on the wrist like naughty Kindergarteners. In my view, this denigrates both crime victims and American values. But according to Dr. Weigend: “[T]he prosecution of criminal law in Germany is understood to be the task of the governmental community; its purpose is not to provide satisfaction to crime victims.” Introduction to the Criminal Code, p. 11. So the victim is voiceless? What about terrified baby girls who have been burned, raped, tortured, sodomized and traumatized? What about the mother of a 17-year-boy killed by brutal gang thugs? What about a man paralyzed by a drunk driver? Are you telling me that the law should overlook these people’s profound outrage against the criminals who destroyed their lives?

In my view, the law has a duty to listen to victims—and their loved ones—in order to assess the true impact of criminal conduct. Unlike the Germans, we care about people in America. The criminal law is not an abstract encounter between a perpetrator and cold, neutral laws; it is a superheated emotional crucible in which the community expresses its outrage, sorrow and desperation against antisocial monsters. In our law, we care about a mother’s anguish when she loses a daughter to a savage rapist-murderer. We care about a brother’s sadness and loss when a vicious thug kills his sibling in a fight. It is not enough to merely show that a killer intended to kill a victim. We want to hear about the misery, terror, pain, loss and anger in the victim’s family. We want to express our outrage against those who author tragedy in society, even if that outrage has nothing to do with the narrow circumstances surrounding the criminal act. Crime affects the entire community; in America, we are determined to make criminals suffer for the horrific results they inflict on everyone, not just the immediate victim. We revisit the full quantum of pain, horror and misery on criminals that they visit upon their victims. This is true justice, not weak German “resocialization.” In a word, we do not want criminals back in our society. We want them to rot and die in rancid cells after writhing in pain on cold, hard floors for several decades.

Yet the Germans do not understand this. Dr. Weigend writes more about “humanity:” “The principle of humanity…obligates the State to treat even those who have grossly violated the rules of peaceful human coexistence as citizens and brethren, as well as to make every effort to win them back into the community.” Introduction to the Criminal Code, p. 10. If “humanity” means treating criminals like “people” and “winning them back” into our midst, we do not want “humanity” here. Quite the contrary, we would rather be “inhumane” than offer “humanity” to criminals. In America, we believe in fair deals. In our “social contract,” you promise to behave. If you break your promise, you pay the price. You do not get a second chance. Forevermore, you are a “criminal,” not a “person.” The Germans call this “inhumane.” We call it “responsibility.” We do not believe it is difficult to live a normal, law-abiding life. All you need to do is refrain from raping, killing, stealing, lying, defrauding and acting badly. It is not difficult. Just be quiet, live normally and do not make mistakes. It is not brain surgery. The State does not owe an “obligation” to be “humane” to anyone. Nothing in the United States Constitution or any State Constitution requires an American State to be humane. States maintain roads and collect taxes. They imprison criminals and assess parking fines. They operate schools and mental clinics. They have no further obligation; and they certainly have no obligation to act “lovey-dovey” with convicted mass murderers, child rapists, thieves, scoundrels and Bernie Madoff-style fraud artists. In response to any German invitation to introduce “humanity” into American criminal law, I say: “Hell no, we won’t go.”

There is nothing wrong with American criminal law. After studying German criminal law, I am reassured in my belief that we have the best system on earth. We are getting along just fine, thank you very much. In fact, I believe that America is the greatest Nation on earth because we understand that criminals are garbage to be discarded, not “recyclables” to be “re-used.” We understand that criminals are not “regular people.” These are people who have broken the social contract and thus deserve worse treatment than others. Criminals hold nothing sacred; they do not want to reintegrate into our society. We have no desire to “win them back” or “resocialize” them. If anything, we want to eliminate them. And we want them to suffer the same pain they inflicted on their victims. As a Federalist, I am not opposed to State efforts to execute criminals who do not cause death. See Kennedy v. Louisiana, 554 U.S. __ (2008)(Alito, J., dissenting, slip opinion at pp. 43-66). States have a right to decide whether conduct represents such a deviation from acceptable community standards that perpetrators deserve to die for it. Whether States decide to kill to jail criminals, the result is the same: We believe that criminals are worthless pieces of unwanted garbage. We do not try to “resocialize” garbage; we want to throw it away—permanently. This is how we view criminals in America. They are nothing but disgusting, worthless, nauseating trash; and States have a right to dispose of it as they see fit.

Of course, the Germans do not execute criminals because they want to “win them back” into society. They think they have “intrinsic worth” as human beings. See, e.g., Basic Law (Grundgesetz) Art. 1 ("The worth (or "dignity") of every human being is inviolable. It is the obligation of all governmental authority to respect and protect it."). That is their prerogative. All I can say is that Americans are smarter than Germans because we know where our garbage belongs. We do not bring garbage back into our living rooms. We toss it onto the trash heap or burn it. If something is worthless, you get rid of it. You do not keep it hanging around your house.

Americans will always face criticism. Europeans will always contend that forgiveness and “humanity” are better policies than draconian criminal penalties. They will even invoke Christianity to support their theories, including Jesus’ dictum: “How you treat the least of my brothers is how you treat me.” Matthew 25:40. I am a devout Christian and I fervently believe in Christ. Yet Christ’s words do not apply to criminals, because criminals are not “my brothers.” Moreover, criminals are not even people. They are lawbreakers. As such, different rules apply to them. In this sense, America faces no religious quandary when it mercilessly hunts down and punishes criminals. We can treat them as poorly as we wish without violating Christ’s word, because criminals are not “Christ’s brothers.”

I am reassured in my commitment to American criminal law. We view criminals as we should view them: As garbage to be discarded. Although we will always face criticism for what some perceive as repressiveness against criminals, we take refuge in the knowledge that we are right. America is dedicated to liberty, equality and justice for all. But as soon as you break the law, you have no right to anything but suffering and pain. You lose your worth and your status as a person. This is justice. We owe it to the victims. As a Supreme Court Justice, I will never deviate from these principles, no matter what the Constitution says. There are citizens and there are criminals. They are not the same. I will never treat them the same, either. In a word, I know what to do with my trash: I throw it away.

GOOD, BAD OR JUST SICK : WHY WE PUNISH CHOICE

AN ESSAY

Everyone loves hearing about crimes. We all have a dread fascination with our society’s lawbreakers. Sometimes we love to hate them. Other times, we rally around the accused, calling his prosecution “unjust.” In still other situations, we criticize the State for prosecuting someone because he is “not bad, just sick.” We express our condemnation for people who make conscious choices that revolt us. We express our approval for people who make conscious choices we deem correct. But we express sympathy for people who have mental difficulty making any conscious choice at all. Interestingly, the result in each case may be precisely the same. Yet our law and our judgment vary depending on the circumstances surrounding the actor’s choice.

Why is choice so important to the criminal law? To answer that question, we must first understand what the criminal law is. Like no other tradition in Anglo-American law, criminal law doctrine draws upon contemporary morality. Morality is not law. Morality simply states how most people in a society generally feel about particular conduct. In other words, morality codifies popular intuition about behavior and thought. Law, on the other hand, has nothing to do with feelings or intuition. Rather, law declares categorical rules of prohibition and permission. It establishes concrete guidelines and consequences for violations. Broadly stated, human reason creates law, not intuition. Yet in criminal matters, law takes on a moral dimension. The People act through their elected representatives to enshrine their moral understandings in law. The result: Criminal law.

Moral systems develop over centuries in every society. In the English tradition, morality developed hand in hand with Christian church dogma. In fact, English common law courts routinely charged defendants with “crime and sin” in the same indictment. Sins represented moral transgressions against God’s law, while crimes represented moral transgressions against Man’s law. Today, this connection may seem untenable. Yet history explains us far better than we like to think. Sin and crime are linked because both involve moral choices. A sinner chooses to do something that God forbids. Similarly, a criminal chooses to do something that the law forbids. What, then, is forbidden? Through law, men are free to forbid virtually anything. Today, there are constitutional limitations on a legislature’s power to forbid certain conduct. But traditionally—and this remains the case—legislatures forbid conduct that most people consider “abhorrent,” “disgusting,” “dangerous,” “revolting” or “unappetizing.” In other words, they forbid things they consider “immoral.” Morality orients itself according to the average man’s sense of outrage and disgust. Not surprisingly, the criminal law follows a similar paradigm. While law may generally follow reason, criminal law is a special case. It uses reason to establish its legal authority, but in substance, it enforces popular morality.

Criminal law punishes people for choosing to do forbidden things. Choice implies that a person faces an alternative between a good path and a bad path according to moral intuition. For example, when a boy walks into a store, he faces a choice: “I can buy some chewing gum or I can steal it. This is my moral choice. I know it is wrong to steal. If I choose to steal, it would be a ‘bad choice,’ because I learned from my earliest days that stealing is ‘bad.’ But if I choose to buy, I would make a ‘good choice.’ Therefore, I will make a good choice and buy the gum.” Here, the boy acts according to intuitive moral understanding. Those intuitive moral understandings find expression in the law. The two systems are identical. It is both criminal and immoral to steal. It is criminal because the criminal statute book literally outlaws stealing property belonging to another person. It is immoral because it is “disgusting and wrong” to deny other people their intuitive property rights.

Crime and immorality are consistent in the opposite situation, too. If the boy chooses to steal, he knows he made a wrong choice. He acted immorally. In the same stroke, he violated the criminal law. Here, however, we witness the criminal law’s intimate concern with moral choice. In proving the crime, the State must show not only that the boy behaved a certain way; it must also show that he had a “bad mind” when he did. It must prove that the boy took the gum. That is easy. Yet it also must prove that, at the moment he took the gum, he knew he did not own it and that he intended to steal it. In other words, the criminal law must prove that the boy had a “bad mind.” In so doing, the State not only proves the boy a criminal. It also holds him up to moral contempt. After all, when a jury hears proof about the boy’s behavior, it also hears about his thoughts, motivations, desires and ultimate “choice to do wrong.” That shows him to be immoral, as well as criminal. And people love to hate immoral choices, because morality is intuitive. You do not need a law degree to feel outrage about revolting choices. We know them when we see them. In this way, the criminal law not only satisfies the cold requirements of reason. It also satisfies the public lust for condemning bad choices. Put simply, the criminal law does far more than prove technical elements. It provides a platform for the public to express their outrage against people who make “the wrong choices.”

Choice means everything in the criminal law, just as it means everything in morality. Choice provides a justification upon which to feel righteous outrage against “lawbreakers” and “moral deviants.” If a person knows he makes a bad choice, he cannot complain when society condemns him. From a historical perspective, common law courts reserved their harshest condemnation for criminals who made “wicked” choices. The judges routinely debated punishment to match the level of “wickedness” inherent in the criminal’s choice. A less “wicked” choice mandated a lesser punishment than a “grievously wicked” one. Even the word “wicked” reveals the intimate connection between morality and criminal law. It is an archaic word that we associate with monsters, witches and primeval demons who plot evil. It is morally charged. By using the word “wicked,” common law judges simultaneously cast themselves both as moral watchmen and as detached legal technicians. The fact that punishment depends upon the “level of wickedness” inherent in any particular choice provides further support for the assertion that the criminal law draws its entire strength from popular morality.

Morality lends itself to righteous hatred. People with a keen moral sense do not hesitate to express their revulsion at individuals who violate moral standards. When those moral standards find expression in the criminal law, criminal trials provide a popular outlet for that righteous hatred. But again, only choice arouses moral hatred. For example, most people detest killing. Yet not all killing is immoral, and not all killing is criminal. Results, in other words, do not always determine moral or legal consequences. Just because someone dies at another person’s hands does not mean the killer is immoral or a criminal. Choice determines morality and criminality far more effectively than mere results. For example, if a driver kills a pedestrian while driving drunk, we say he is far less immoral than a man who calmly murders his wife to get her life insurance money. A man is somewhat immoral when he stabs a rival in a heated argument after a “sufficient provocation.” And we say a man is not immoral at all when he shoots a robber in his home.

On these examples, we see similar results: People killing other people. Yet morality condemns some killings more than others. The law, too, makes distinctions to match the moral feeling associated with each killing. A drunk driver makes a “bad choice” because he chooses to get into a car while drunk. An ordinarily prudent man knows that driving drunk creates extremely hazardous risks. Therein lies the bad choice; the drunk driver did not choose to deliberately kill the pedestrian. He simply chose to something that caused great risk to others. That choice is immoral, but not as immoral as choosing to kill your wife in order to get her insurance money. From a moral perspective, that choice arouses more popular disgust than choosing to drive drunk. It revolts us more. It shows us that the killer had financial motives in ending another person’s life. That is more shocking, outrageous and despicable—for one moral reason or another—than choosing to drive drunk. Morality assigns the distinctions based upon the intuitive feeling associated with each choice. And the law follows suit by punishing the more “wicked” choice more severely than the “less wicked” choice. The same reasoning applies to the man who wrathfully stabs his rival in an argument. It is immoral to intentionally strike another person dead, but according to popular morality, it is more “forgivable” when the killer is “beside himself” with rage. After all, we all have lost our tempers. We know that we do not think clearly when rage overcomes us. Our choices, then, are not “as bad” as they are when we think clearly. Again, we see choice as the sole basis upon which both law and morality draw distinctions.

Finally, we do not consider it immoral at all when a man shoots a robber in his home. Popular intuition tells us that preserving our own lives is so important that it entitles us to kill someone intent upon killing us. In these circumstances, there is nothing blameworthy or “disgusting” about killing another person when you must kill to live. The law responds in kind: It is no crime at all to kill someone in self-defense. This moral distinction may reveal a society’s values more than any other. The circumstances under which a society legally permits killing candidly demonstrate what a society holds dear. While many people would not argue that killing in self-defense is justifiable, what about killing unarmed trespassers? That is legal in Texas. Because the criminal law draws on moral sources, the Texas law—at the least—expresses the moral norms of the people who made it.

Criminal law, then, provides a forum in which the public can express measured moral outrage against all kinds of “bad choices.” Choice is the touchstone. We have no trouble labeling someone “morally bad” and a “criminal” if he makes a choice that arouses sufficient public disgust. In most cases, a “bad choice” leads to “bad results” and we have no problem taking revenge on criminals because their bad choices cause tangible damage. But what happens when damage flows from people who cannot make rational choices? In other words, what about the mentally ill or—to use a less delicate, 19th Century term—“the insane?” After all, the criminal law draws its strength from morality, and no one is immoral unless they make choices that violate intuitive moral standards. Mentally ill people, however, do not possess the same intuitive understandings as “average citizens.” They do not make “choices” in the same way as an “average man.” Unlike the boy in the store who faces an uncomplicated alternative between “good” and “bad” choices, a mentally ill person does not weigh moral paths. He follows totally different mentally processes, and they are not rational. To that extent, mental illness completely derails both the moral and legal justifications for punishment based on choice. If a person does not have capacity to “choose” as we understand it, the entire punishment rationale collapses. A mentally-ill person may cause as much damage as the cruelest sane murderer, but we do not revile him as “wicked.” Rather, we pity him for his “insanity.” We do not call him “bad;” we call him “sick.” Again, we see that the criminal law depends upon choice for its thematic consistency. It assumes that people can make rational decisions in life based upon intuitive moral understandings. When a person cannot make such decisions, it becomes entirely unjust to punish him because he "makes no choice."

But mentally-ill people pose dangers precisely because they cannot make rational decisions. They act on irrational impulses, which in turn create risks for people around them. The law recognizes this. When a mentally-ill person causes harm, the law steps in to incapacitate him, not punish him. In this sense, the criminal law does not express moral outrage. It simply performs a “utilitarian” function, namely, to protect the public from dangerous instrumentalities. The criminal law performs this function even if the criminal does make rational choices, but in the case of mental illness, incapacitation is the only alternative. There is no moral dimension to these legal functions. Nonetheless, when the law takes action against the mentally-ill, it still judges. It does not act as a moral judge, but rather as a judge of “normalcy” and “fitness to live in society.” In some sense, these judgments are even more pernicious and value-based than their moral counterparts.

Criminal law fascinates us because it has a uniquely public function. Few people care about individual civil disputes between private individuals. But everyone cares about trials against notorious lawbreakers and rascals. We devour crime literature and entertainment. We relish news stories about abominable crimes and their victims. We express popular contempt for nefarious suspects. We even pause to consider whether criminals are really “bad” or whether they are “sick.” We do all these things because criminal law is intertwined with society’s basic moral sense and because criminal cases proceed in the People’s name. Like few other legal fields, criminal law captures the public imagination. We feel that we play a role because criminals attack our values as a society. And when we feel under attack, we relish the opportunity to pronounce our moral judgments against the trespasser. That is just the way we are. The criminal law simply provides us an outlet for us to condemn or approve other people’s choices.

A TRAITOR'S DEATH

Several weeks ago, I wrote about the distinction in English law between murder and treason. Murderers and traitors both forfeited their lives under law, but for different reasons. Traitors received the ultimate penalty--to be hanged, drawn and quartered--while mere murderers simply hanged. Murderers were violent toward their fellow man; but traitors did something far worse: They betrayed loyalties. In the law's view, disloyalty was worse than violence, even if disloyalty did not lead to anyone's death. That explained the differential treatment for murderers and traitors. And it revealed the common law's nod to dominant social values. Put another way, the law was as much concerned with maintaining established systems of dominance and subservience as it was with deterring behavior that physically harmed other people.

Interestingly, Shakespeare thought that murder and treason occupied the same ground. "Treason and murder ever kept together,/ As two yoke-devils sworn to either's purpose, / Working so grossly in a natural cause, / That admiration did not whoop at them." King Henry V, Act II sc. ii. Although traitors typically murder--or attempt to murder--their sovereign, the historical record reveals that conviction for treason required far less than trying to kill the King. I noted in my previous essay that English statutes constantly expanded the reach of "high treason," so that even mere coin-counterfeiters could be condemned as traitors "for offenses against the King's currency." The same horrible penalty applied whether the traitor smelted a coin or stabbed the King.

And what gruesome penalties! Today I read about an English nobleman named "George Plantagenet, Duke of Clarence" (1449-1478) who was "condemned to the Tower of London for compassing the death of the King by necromancy." He was slated for beheading, but before the sentence could be carried out, the King's henchmen "murdered him by drowning him in a butt of Malmsey wine." See Article at http://www.luminarium.org/encyclopedia/clarence.htm.

I have read about many executions. But I had never heard about forced drowning in wine.

I often criticize the death penalty because I think it reveals the antiquated moral state of our civilization. We show our colors as a civilization when we stoop to physical barbarism toward our fellow men, no matter how contemptible they are. Although men will always be beasts to one another, governments aspire to something higher. Governments profess to maintain dignity, reason, justice and constitutional ideals. Thus, when government kills, it shows its own evolutionary handicaps. Worse, it descends into outright hypocrisy. It is no excuse to say: "Well, these are the worst people in our society. They broke the law and we should treat them the same way they treated their victims." But government has an obligation to rise above brute revenge. In fact, when government stoops to physical barbarism, it violates us all. Jesus' words come to mind: "Whatver you do for the least of these my brothers, you do it to me." Matthew 25:40. In other words, the mere fact that a criminal is "contemptible" does not entitle us as a society to brutalize him in a manner that we would condemn in other circumstances.

Capital punishment presents extremely difficult social and philosophical questions. Without going into great detail today, I believe that--in America, at least--the death penalty is heir to a barbaric past. I do not believe that government has an obligation to use brutal violence against criminals. Government has an obligation to obey rational principles, not to yield to bloodthirsty urges for revenge. Nor do I think that government should so sanguinely invoke "tradition" to justify the death penalty. After all, that "tradition" once drowned people in wine, tore their intestines from their bellies while they were still alive and publicly displayed their mutilated corpses until the vultures picked them clean. That is not a tradition of which 21st Century governments should be proud. If anything, a government dedicated to advancing ideals and dignity should try its best to disavow such a sordid legacy.

Death penalty defenders say that contemporary execution methods "are nothing like" the barbaric practices of old. But that argument misses the mark. The question is more abstract. It does not matter how government kills; it matters that government kills. And it matters that government-sponsored killing is heir to a gruesome tradition. If principle carries any weight with governments, it should command them to abandon captial punishment on "evolutionary" grounds. In short, we should be ashamed to continue a tradition that once empowered State officials to lash living people to wheels and smash their joints with mallets. No matter how much the methods have changed over the centuries, one fact remains: Government kills. Individual citizens may want bloody revenge, but government has an obligation to rise above individual outrage. Government must follow reason, not passion.

INTRODUCING : THE INSTITUTE FOR MORE RUBBISH, ROT, BALDERDASH, DRIVEL, BOSH & NONSENSE UNDER LAW

By : Hon. George A. Nuttwangler, United States Court of Appeals for the Fifth Circuit (Appointed by President George W. Bush, 2004)

Today it gives me great pleasure to open the doors to an institution that will secure the rule of law in the United States. In our great country, all men are equal under law; provided in all events they are Republican; and in no case shall any terrorist be equal. To secure the blessings of liberty and equality to all our citizens, we are dedicated to providing fair and just legal process; but in no event shall any legal process be fair if any party thereto be a bank or financial institution with superior creditor rights. The Institute for More Rubbish, Rot, Balderdash, Drivel, Bosh & Nonsense Under Law represents a great step forward in our Nation’s commitment to justice, except when justice would be inconsistent with national security concerns. I am honored to write an introduction for such a necessary institution.

I have been a Federal judge for over 15 years. During my tenure on the bench, I have learned that written rubbish and balderdash protect the law better than any abstract commitment to justice. I have also learned that rot and drivel can be very convincing when presented by well-educated Republican advocates. The institute will play its part by reinforcing public respect for rubbish, balderdash, rot and drivel. My best judicial opinions have drawn on all four elements, combining logical rubbish with rhetorical drivel. My capacity for partisan nonsense is unmatched because I understand that law depends on judges like me. As a veteran of the judicial process, I commend the Institute for its commitment to rubbish and drivel. Without drivel and rot, judges could not protect the law. I stand with the Institute in praising the law for its unique ability to use counterintuitive gibberish for an orderly society.

Our society needs more rubbish and balderdash, not less. Our society does not need slavish dedication to principle, unless there are exceptions to principle that can generate balderdash. Good judicial work means finding the result that leads to the greatest possible rubbish. There is right and wrong, and then there is law. Judges do not serve “right” or “wrong;” they serve the law. If the law dictates drivel, we rule for drivel, no matter what “right” or “wrong” have to say about it. As judges, we do not ruminate. We repeat what the law says, provided always that the law is consistent with our political ideologies. If the law is inconsistent with our political ideologies, we find it unconstitutional.

We praise good judicial work. The Institute stands for good judicial work. To that end, we praise recent court decisions that base their conclusions in rot and nonsense rather than justice. The Institute stands for rubbish under law. That is why we applaud recent court decisions that use law to reach results that maximize tomfoolery. For example, we applaud the United States Court of Appeals for the Second Circuit for dismissing a Canadian national’s suit for damages arising from America’s knowing decision to send him to Syria for torture. There, the court wisely held that Federal courts have no liberty to fashion freestanding remedies for actions that take place in a foreign country, even if American officials send people to the foreign country in question. Additionally, the court wisely held that Federal courts do not have subject matter jurisdiction to hear such preposterous claims, even if they are true. Here, the court prudently avoided deciding the case on “justice” grounds. In the spirit of good judicial work, it decided the case with reasoned drivel, rot and nonsense under law.

I commend the Institute for its active role in promoting balderdash. Our legal system depends on nonsense, hypertechnical argument, rigid time deadlines and inane formalism. I salute the Institute for its dedication to promoting these values over dangerous ideas such as equality, justice and conscience. We are a Nation of laws, not of men. Equality, justice and conscience depend on men, not law. Thus, we cannot rightly apply them in legal questions. In legal questions, we must remain faithful to drivel and formalism. If judges began applying justice to legal questions, our entire social order would collapse. Only through disingenuous, unfair and absurdly logical rhetoric can we defend the citizens who really matter in our society. After all, judges do not serve everyone; they serve only those who present the best-sounding rot in the proper paper format consistent with all local filing rules.

I join the Institute for its dedication to the Nonsensical School of Constitutional Jurisprudence. The Institute understands—as I do—that the United States Constitution contains potentially dangerous, general language that could undermine the law’s insistence on drivel, balderdash and inane formalism. Indeed, grandiose phrases such as: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility…and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America,” might lead reasonable readers to think that this country stands for liberty and justice. But under the Nonsensical School, we teach that words do not always mean what they say. Here, for example, we teach that the words “liberty” refers to the “liberty to make contracts under law,” while “justice” refers to the “technical establishment of a court system consistent with established common law doctrine.” By applying nonsense, we avoid thematic and practical difficulties associated with general words such as “liberty” and “justice.” We salute both Federal appeals court judges and Supreme Court justices such as John Roberts, Samuel Alito and Antonin Scalia for their dogged reliance on the Nonsensical School in formulating their judicial opinions. And we especially salute Justice Clarence Thomas not only for his adherence to constitutional nonsense, but also his innate talent for balderdash in every word he writes.

Law achieves fairness because judges fairly write rot in every case consistent with written procedures. They do not achieve fairness by speculating on the meaning of “justice,” “equality,” “liberty,” or “right.” To that extent, the Institute commends judges who put their faith in technicality rather than conscience. Judges are not princes. They are technical workers versed in drivel and bosh. They do not speculate or venture; they recite whatever rigamarole they read in the statute book or case reporter, unless the statute book or case reporter provides a just answer. Law is fair because everyone knows that the result will accord with balderdash. As long as litigants follow the deadline rules and stamp their papers properly, they can be sure that they will receive justice to the maximum extent permitted by drivel, rot, rubbish and nonsense.

We encourage all Americans to visit the Institute for More Rubbish, Rot, Balderdash, Drivel & Bosh Under Law. Americans deserve to know how the law really works. In today’s society, too many people feel that the law serves intuitive notions of “right,” “wrong” and “justice.” It would be better if Americans learned the truth about the law and realized that law exists to maintain existing social order through tortured logic and procedural handicaps that favor the powerful. If they knew that, they would be less disappointed when the law merely does its work every day. All too often, Americans become outraged when they feel that the courts “do injustice.” But they would not react that way if they understood that the courts are simply doing what they are designed to do: To render the most nonsensical results, every time. Americans would be better off if they left “justice,” “fairness,” “right” and “equality” to professors and philosophers, not to judges. The Institute aims to educate Americans about their judicial system. As a judge who scrupulously practices rubbish every day, I commend the Institute for its enterprise. After all, the law cares not for right and wrong; it merely aims to officiate who owns what and who owes whom how much—according to mystifying written rules and exceptions.

THE LAW : WHO SAID ANYTHING ABOUT JUSTICE?

AN ESSAY

I have always mocked lawyers for their pedantic attention to minor details. This is not to say that I do not attend to details when detail is important. But lawyers have a reputation for insisting on details that—in the grand scheme—are less than trifling. This morning I read a case review discussing the Illinois Supreme Court’s rules for filing appeals in the correct format. If an appeal does not precisely meet the Court’s formal requirements, the Court will not consider the issues, even if a person’s liberty is at stake. If an imprisoned man wishes to petition the Illinois Supreme Court for a writ of habeas corpus, he must precisely list each issue he intends to discuss in his appeal. If he fails to include an issue in the list, the Court will refuse to consider it, even if he discusses the issue in his legal brief. To my mind, this is formalism run amok. And it confirms my hatred for lawyers’ obsession with procedure, even when procedure leads to injustice.

Hate is a strong word, but I use it quite consciously in these circumstances because I feel that most people mistakenly look to the law as a source of justice and good. In the law, justice is merely a side effect; it is not the law’s true object. Law professors roll their eyes when naïve first-year law students struggle to recognize this sad truth. “How could this case come out like this? What about justice?” Only after reading hundreds of cases does the student see that “justice” is not the law’s purpose. “Justice” refers to an intuitive, unwritten notion of basic right and wrong in a given situation. It draws upon common, unstated humanity, not rigid written rules and procedures. Yet the law is rarely intuitive, and it is always written. It is a product of human reason, not human intuition. Its goals are purely administrative. The law aims to lay down predictable, recognizable rules that encourage people to do business and to restrain them from injuring one another. At times the law will lead to justice. Other times it will not. It is simply not important.

Legal rules often reflect the judgment of the powerful over the weak. The law rarely comes into play without conflict, and most conflicts involve a strong party and a weak party. Strong parties like their strength and want to keep it. They will do their best to write laws in such a way as to keep their strength. English common law, for example, always favored the “more propertied” party in any dispute. Ownership was strength, and the owner had rights against the non-owner. Even criminal laws protected property. The common law reserved harsh penalties for those who disrespected merchants’ property rights. Until the mid-19th Century, England hanged thieves who targeted merchants. Merchants had strength and they lobbied Parliament to draft laws that preserved their strength. It is a familiar refrain. While we may no longer hang thieves, our law nonetheless responds far more readily to the strong than the weak.

Legal procedure ensures that the strong win, even if the weak have a good case. The Illinois Supreme Court rules requiring a “precise statement of the issues on appeal” reveal this phenomenon at work. A prisoner is a “weak” party who naively attempts to use the law as a vehicle for justice. The government, however, is a “strong” party that attempts to use legal procedure to foil such naïve defiance. The prisoner may have been falsely convicted on the basis of improper police work. But if he fails to list that issue in his petition, the Court will not even consider it. The government will win, even if the prisoner is absolutely correct in his assertion. Because the prisoner did not technically meet the formal requirements, he loses. He will never get another chance to argue the issue because the legal procedures ensnared him.

Lawyers would say that this is a perfectly acceptable result. They would say: “Read the rulebook before playing in the courts.” As true as that may be as a technical matter, they miss the point. The crucial question is not whether someone conforms with technical requirements; the crucial question is whether a court does justice. If a court keeps an innocent man in prison simply because he lacked the linguistic acumen to avoid a procedural trap, it holds itself up to ridicule. A court may be perfectly accurate in applying a procedural rule, but if it fails to do clear justice, it arouses outrage. Outrage, of course, does not depend on rulebooks or technical requirements. Outrage breaks out when a person—as an intuitive matter—feels that wrong has been done. Obsessive attention to legal procedure can lead to this. After all, legal procedure often misses the forest for its own trees. In its ruthless insistence on compliance, legal procedure brings to mind Jesus’ rebuke to the Pharisees: “You pay a tenth of mint, dill and cumin, yet you have neglected the more important matters of the law—justice, mercy and faith. These things should have been done without neglecting the others. Blind guides! You strain out a gnat, yet gulp down a camel!…First clean the inside of the cup, so the outside of it may be clean.” Matthew Ch. 23:23-24, 26.

Justice is the “inside of the cup” that legal procedure so often ignores. The law does not seek justice. It seeks only to compel compliance with technical, written requirements. It fixates on the “outside of the cup.” In other words, the law concerns itself only with external matters, not conscience. In many cases, compliance with legal requirements comports with justice, but justice is merely incidental. Dedication to the law, then, requires dedication to the external world. That means dedication to the banal demands of body and property.

Martin Luther commented that the true Christian lives in an internal world of faith and conscience. His goodness flows from his belief in Christ as his Savior and as intermediary between God and man. See, e.g., Commentary on St. Paul’s Epistle to the Galatians (1535). Luther observes that justice lives in the heart, not in the external world, just as Jesus observed that the “more important matters of the law” reside “inside of the cup.” Luther praises the true Christian who “lives in the heart” and does good works that “flow from [] faith,” not external commands. Indeed, Luther draws a sharp distinction between “faith” and “law.” True Christians, he argues, need only faith. All others live in the “world of the law,” which is not only cruel, but also “God’s enemy.” Cf., Treatise on Governmental Authority (1523). In a stinging rebuke, Luther says that without faith, “[w]e shall not be able to observe true theology, but shall immediately become lawyers, ceremonialists, legalists and papists.” Luther equates lawyers with the hateful “world of the law” and its slavish attention to meaningless details. The “world of the law” cares not for justice. It cares only for technical compliance with rules that ultimately mean nothing.

What does this say about lawyers? Lawyers spend their careers arguing whether people have complied with written regulations. They spend their careers arguing whether people should suffer harm to their bodies or property. They need believe nothing; they must merely observe external behavior. They do not live internally. They need no faith. In other words, a lawyer’s trade is spiritually vacuous. That is not to say that there are not lawyers who have spiritual lives. There are undoubtedly many lawyers who believe that their work does justice. But they do not comprehend that the law—in its pure essence—has nothing to do with justice. The law leaves no room for intuition or imagination. A person’s actions either conform to the written standard or they do not. A paper is either “properly filed” or it is not. An application either meets the requirements for an exemption or it does not. Answering these questions does not require a subtle sense of justice; one must merely determine whether the facts meet the governing rule.

Law is mechanical. But law traverses such a vast array of human conduct that it inevitably conflicts with values other than technical compliance. Outrage is common in legal questions because people truly believe that the law should respond to intuitive justice. When the law arrives at an unjust result, it is not because the law failed to do its job. Indeed, unjust results often flow from faithful applications of the law. This is what most people do not understand: That often the law intentionally perpetuates injustice by sustaining dominant social values. Law regulates only the external world. Those who rule the external world enjoy inherent advantages over those who do not. They have the opportunity to preserve their power through law; and they take the opportunity whenever they can. Legal procedure and legal rules preserve power structures. At times it may be just to preserve power structures. At times it is not. Yet the law preserves them in both cases, whether it is just or not.

It comes down to this: A falsely accused man has been tried. The evidence supports conviction. The jury would comply with the law’s technical requirements if it found him guilty. The accused man stands up and says: “All I ask for is justice.” That may be a moving appeal, but he does not understand the law’s purpose. The law dictates a result. It demands compliance. A daring jury would acquit him, but it would violate the law if it did. Query: Must it be daring to do justice? Should not justice be our goal in every instance? Or is orderly administration more important than doing right?