Over the weekend, the NYT printed an article calling the Supreme Court under C.J. Roberts the “most conservative in decades.”  “The court not only moved to the right,” the article said, “but also became the most conservative one in living memory, based on an analysis of four sets of political science data.”

We admit to reading the article with a fair amount of skepticism.  Whenever political science folks or sociologists or others of their ilk start talking about the Court being “conservative” or “liberal,” we get uncomfortable.  The words have very different meanings for politicos than they do for jurists.  A judicial conservative is not necessarily supportive of right-wing politics.  A jurist who is politically conservative may well be fairly liberal in his jurisprudence, especially if he’s using his opinions to further a political agenda. 

The article did nothing to assuage our discomfort.  As we feared, it conflated the concepts of political and judicial conservatism.  The article really focused on whether rulings were more or less likely to be favored by conservative political platforms. 

To be fair, the headline really is misleading.  The article itself says at least twice that “the recent shift to the right is modest.”  And it does point out not only that ”the court’s decisions have hardly been uniformly conservative,” but also that “the court’s decisions are often closely aligned with or more liberal than public opinion.”

But the basis of any analysis is its presumptions.  And the presumptions applied here are beyond simplistic.  “In the database, votes favoring criminal defendants, unions, people claiming discrimination or violation of their civil rights are, for instance, said to be liberal.  Decisions striking down economic regulations and favoring prosecutors, employers and the government are said to be conservative.”  Forget being beyond simplistic, it’s downright misleading.

Notice that the focus is on who prevailed in the case, not why the Court sided with them.  Just because a criminal defendant won his appeal, for example, that does not mean the justices were being liberal when they sided with him.  The Melendez-Diaz case, after all, pretty clearly restrains the prosecution and favors defendants, by requiring chemists to testify at trial as to their analysis of alleged drugs.  Who wrote the majority opinion?  Scalia.  Hardly a liberal.  His reasoning?  Very conservative: this is little more than an application of existing 6th Amendment law under Crawford.  Scalia is one of the most conservative justices, and yet he’s also the Court’s biggest protector of 6th Amendment rights.

Similarly, just because a civil-rights claim prevails, that has nothing to do with whether the decision itself is particularly liberal.  And if the civil-rights claimant loses, that doesn’t mean the decision was conservative.

The analysis is flawed from the get-go, because it focuses on the wrong thing entirely.  The focus should not be on who won, but why they won.

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We also made a face when we read this bit: “The Roberts court is finding laws unconstitutional and reversing precedent — two measures of activism — no more often than earlier courts.  But the ideological direction of the court’s activism has undergone a marked change toward conservative results.”

No, no and no.

Judicial activism is not measured by finding laws unconstitutional.  Judicial activism is creating new law where none existed, or legislating from the bench — it is another way of saying the court is exceeding its authority.  When the law is different from how a judge thinks it ought to be, an activist judge changes the law.  Merely applying existing constitutional law, however, and finding that the legislature has passed a statute that happens to be unconstitutional — that is precisely what the courts are supposed to do in the first place.  It is the opposite of judicial activism.

Reversing precedent isn’t so much a measure of activism, either.  Some precedents ought to be reversed for perfectly good reasons, such as a change in societal circumstances that necessitated the precedent in the first place.  There is nothing activist about saying “applying the Constitution to fact set A resulted in rule X, but now we have fact set B and rule X doesn’t follow any more.”  What is activist is deciding not to reverse a no-longer-applicable precedent, in order to advance some policy interest.  (Grutter, anyone?)

Recently, there’s been an Orwellian movement on the left to redefine the phrase “judicial activism.”  We purse our lips with disapproval every time the NY Times and others mis-use the phrase to mean “decisions that we don’t agree with politically.”  Unfortunately, we’re seeing that more and more.  But repetition doesn’t make it right. 

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 The article draws a lot of baseless conclusions that we found perplexing.  They read more like a shopping list of liberal paranoia than anything else.  (Wow, that’s the worst simile we’ve written in ages.  We hereby acknowledge its awfulness, but we don’t have time to edit these things.  Every post here is a first draft.  Which explains a lot…)

Take the fifth paragraph, for example:

If the Roberts court continues on the course suggested by its first five years, it is likely to allow a greater role for religion in public life, to permit more participation by unions and corporations in elections, and to elaborate further on the scope of the Second Amendment’s right to bear arms.  Abortion rights are likely to be curtailed, as are affirmative action and protections for people accused of crimes

That’s nothing more than saying the court is more likely to do things that liberals think conservatives want done.  And there is no basis for saying it.

“Greater role for religion in public life” — really?  So judicial conservatives are somehow more likely to disregard the Establishment Clause and all the court’s jurisprudence thus far?  Kennedy’s suddenly going to say he was wrong in Lee v. Weisman?  Hardly.

“More participation by unions and corporations in elections” — than what?  They’re already allowed to contribute to campaigns, what, they’re going to be allowed to vote or run for office, too?

Further elaboration “on the scope of the Second Amendment’s right to bear arms” is sort of going to be necessary, no matter who’s sitting on the Court.  In the wake of Heller and McDonald, cities are already formulating ordinances designed to restrict gun ownership despite those rulings, and there will have to be some more cases to flesh out precisely what is and is not permissible government regulation here.  The Roberts court is no more likely to “elaborate further” than if you replaced them all and let Obama fill their seats.

“Abortion rights are likely to be curtailed” — likely?  Curtailed?  How?  Since when?  This concern is a shibboleth of the political left, but it is an irrational fear.  Legalized abortion has been the law of the land for nearly 40 years, now.  The Court has had ample opportunity to reverse Roe v. Wade, and even the most conservative justices have not gone that route.  If the Roberts court was so inclined, one would have expected some indication in the Carhart case a couple of years ago.  But instead, they stuck with the Roe and Casey rule.  There is zero indication that the Court is going to change its mind all of a sudden.  And the longer the law remains the law (and as society becomes more and more cool with it in general), the likelihood of a conservative court flying in the face of stare decisis becomes more and more remote.

“Affirmative action” is likely to be curtailed?  — Not for another 18 years, per the 2003 decision in Grutter.

“Protections for people accused of crimes” are likely to be curtailed? — Is nobody paying attention?  We sure haven’t been seeing it.  What we’re seeing is a trend towards greater certainty being required for whether one has waived his Fifth Amendment rights.  Greater protection of Sixth Amendment rights.  More restrictions on capital punishment.  Nowhere are we seeing a trend towards fewer protections for the accused. 

The Times is just making this stuff up.  It sounds right to them, so it must be true?  That’s not how journalism is supposed to work.  But we guarantee this piece is going to be quoted ad nauseam as gospel in future arguments about the makeup of the Court.  And that’s too bad.

So, who wants to do a proper study?  Any takers?

“There has been a spate of particularly brutal and senseless attacks on the police,” according to Eugene O’Donnell, professor of police studies at John Jay College of Criminal Justice, and a former police officer and prosecutor. “It seems to me, [there is] an unprecedented level of disrespect and willingness to challenge police officers all over the place.”

What a telling quote.  (We’d have missed it, too, if Scott Greenfield hadn’t written about it today.  Apparently this was quoted on Fox, and we’ve never gotten around to actually watching or reading Fox News.  We get our news mostly from Fark and the WSJ.)  We have no data with which to verify the claim that police are getting attacked more often.  Nor are we aware of any studies showing an unprecedented level of disrespect for the police.  But like all good anecdotal claims, it seems right because it meshes with our own perception — regardless of whether our perception accurately reflects the truth.

In other words, it’s telling not because it is true, but because it feels true.

Perception is everything.  Reality has a way of catching up.  It’s true of almost every human endeavor except pure math and the most rigorous science.  Perception either is truth, or it becomes truth.

And the perception is that people have “an unprecedented level of disrespect” for the police.  Accurate or not, it’s fast becoming the truth.

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So how come?  That’s easy.  Disrespect must be earned.  People tend not to disrespect others until they’ve been given a reason to.  But once respect is lost, it is practically gone forever.  Reputation works that way.  And when people lose respect for an authority figure, the effect is even worse.  There’s a sense of betrayal.  A violation of trust.  When a trusted authority figure has betrayed that trust, the natural response is not mere disrespect, but hostility.

In recent weeks, there has been talk of more and more people getting arrested for videotaping the police.   It’s nothing new — we’ve been reading such stories for several years now, ever since cell phones started being kitted out with video cameras.  Still, it’s a topic of the day, and we’ve had a few conversations with people on both sides of the issue.  Leaving aside the whole wiretapping issue, however, (a typical explanation for such arrests in states without a one-party-consent rule, though it’s still bogus when the taping is in public and not remotely unlawful eavesdropping), it sure seems like cops are making these arrests because they’re afraid of being made to look bad.  Perception matters.

Are they afraid of misperception?  Sure.  “The camera doesn’t lie,” folks say.  But that’s demonstrably false.  Look at that famous video of Rodney King getting clubbed by a swarm of cops.  It sure looks like he’s getting hit for no good reason, doesn’t it?  But the video doesn’t show King going 80 mph through residential neighborhoods after a 100+ mph freeway chase, it doesn’t show King acting like he was flying on PCP when he got out of the car, it doesn’t show him fighting off multiple officers who tried to handcuff him.  The video actually shows the cops acting by the book, doing exactly what they were supposed to do — get him on the ground and keep him there.  He got hit with batons when he kept trying to get up, and the cops struck him to keep him on the ground.  The jury acquitted the cops, because they did it by the book.  But there was rioting and mayhem as a result, because the perception was different.

The camera does lie, because it doesn’t tell the whole story.  Cops suddenly rushing up on a guy for no apparent reason, frisking him, and arresting him — that looks bad if you didn’t know the guy had sold crack to an undercover a few minutes before.  But the camera didn’t catch that.  But guess what, that’s still the cops’ problem, and rightly so.  Eyewitnesses in the community didn’t see it, either, after all.  Is it any wonder why some communities have a strong perception that the cops keep grabbing people for no good reason?  Because that’s what they see.  Right or wrong, that’s the perception. 

And it’s the cops’ job to manage that perception.  Nobody else’s.

But the cops have to be afraid of legitimate perceptions, too.  The camera does happen to catch a whole lot of real police misconduct.  Cops abuse their power all the time.  They do lock people up without good reason.  They do hit, shoot, tase people without good reason.

This misconduct is nothing knew.  There have always been dumbasses, martinets and thugs in uniform.  They’re a minority, but they’ve always been around.  What’s new is that, thanks to the ubiquity of digital cameras and YouTube, people who ordinarily would never have heard of these acts are now able to see them all the time.

Maybe there’s a danger that, because of their sensational nature, these videos get seen so frequently that they create a disproportionate impression, a false perception that this goes on a lot more than it really does.  There’s probably something to that.

But it doesn’t matter.  The fact is that people are seeing more and more police brutality these days.  And they’re seeing it, not just hearing stories.  People are internalizing it, it’s becoming common knowledge.  Not just to people in the poorer communities whose voices are never heard to begin with.  Middle-class, law-abiding folks are starting to believe that the cops can’t be trusted.

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Now, the snarky thing to say at this point is “we could have told you that.”  We’ve been practicing criminal law since ‘96, and from our very first case we’ve dealt with police misconduct.  We’re friends with a lot of good cops, but it’s been a long time since we felt any trust for a cop just because they’re wearing the uniform. 

But for the general population to feel the same way?  Is that really a good thing? 

Perception is all.  And if the police are generally perceived to be unjust, then they will lose their moral authority.  That is dangerous.

It is dangerous for the policing side of criminal justice, because moral authority is pretty much all the police have, when you think about it.  Even here in NYC, with a police force the size of a whole town, there are nowhere near enough cops to do the job if a decent chunk of the population chose to defy them.  Any cop with half a brain knows that the only thing standing between him and the mob is the mob’s fragile respect for the badge.

Without that respect, the police would have to resort to fear.  The NYPD would have to mutate back into being just the biggest, best-armed gang in town, bring back the TPF goon squad, just to get the job done.  That’s bad for the rest of us. 

Our entire criminal justice system is designed to work by managing perceptions.  Crime is controlled by deterrence, which you only get if there’s a general sense that the system is fair and the guilty get punished.  If you set everything up just so, and you could get people to believe that without having to incur the expense of prosecuting and punishing the guilty, you’d still get the same level of deterrence. 

The police are part of that equation.  They react to crime and try to catch the guilty so they may be punished.  They also serve to uphold the law, which they do not by enforcing it, but by embodying it.

The police really are supposed to be the good guys.  The fact that a lot of them aren’t is something we defense lawyers ought to know, but for the general population to start believing that the cops are the bad guys?  That way lies chaos.

Quis custodiet ipsos custodes?  All of us, now.  On YouTube.

“Hate” is not an element of New York’s “hate crime” law.  You don’t have to hate to commit a hate crime.  Instead, the law merely requires that you have “a belief or perception” regarding a person’s race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation.  (The legislature could have saved a lot of bother by simply saying “a characteristic of a person over which that person has no control.”  That’s the policy they’re pursuing, even if they don’t realize it.)

There’s a list of eligible crimes at PL §485.05(3).  If you commit one of those crimes, and if you either chose your victim or committed the crime because of such “a belief or perception,” then you are guilty of a hate crime in New York, and now face harsher punishment.

This is a pretty vague statute.  You don’t need to have any specific belief or perception about someone, just “a” belief or perception.

The Queens DA’s office — already known more for its zeal than for its sense of justice — has now taken that vagueness to its logical extreme.  They’ve taken the reductio ad absurdum and made it office policy.

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The New York Times reports today that the Queens DA has been going after people who defraud old people, not because of any animus towards old people, but because of a belief about old people.  Namely, that old people are easy to defraud. 

Ordinarily, such frauds do not carry any mandatory jail time.  But if charged as a hate crime, they carry mandatory upstate prison time.  Can it be that the legislature really intended this outcome?

By the Queens DA’s logic, every scam targeted at the elderly is a hate crime, because the scam rests on a belief that old folks are easy to scam. 

By this same logic, any fake charity targeting Catholics would be a hate crime, because the scam rests on a belief that Catholics would give to that particular charity.

By this same logic, every rape of a woman is a hate crime, because the rape rests on a belief that women have vaginas that can be penetrated.

By this same extreme logic, every murder of a blind person is a hate crime, because the murder rests on a belief that blind people have lives that can be taken.

Of course that’s absurd.  This is all absurd.  There are already laws on the books dealing with such scams and crimes.  There are already penalties thought out and voted on for people who commit scams and rapes and whatever.  It cannot be that the legislature intended them to face even more time than the law already gives them.

So what’s going on here?

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What we have here is the legislature failing to get the concept.

The whole point of a hate crime is to impose more severe sentences based on a more severe mens rea. 

If you think about it, mens rea is what determines the severity of a crime.  For any given criminal act, the more culpable the mental state, the more severely it is punished.  Negligence is worse than accident.  Knowledge is worse than recklessness.  Intent or purposefulness are worse than the rest. 

Hate crimes enhance a sentence based on an extra mental state.  But unlike the other mental states, the focus isn’t on what you were thinking about your own actions, but what you were thinking about the victim.  (See more on all this here, here and here.)

And as pointed out above, it’s got to involve something over which the victim has no control.  Nobody can help how they’re made, and it’s wrong to hurt someone because of it.  That’s the policy underlying discrimination law, substantive due process, and related jurisprudence.  And it’s the same policy underlying hate crime laws.

But there also has to be some animus: You’re targeting old people because you don’t like them, not because they’re more likely to fall for a con.  You’re targeting gays because you think they’re bad, not because they’re more likely to have stuff worth burgling.  You’re targeting black/white/purple people because you think they deserve it, not because you’ve simply selected them as more likely targets.

That is, after all, the whole point.  If you’re mugging Asian people, not because of any animus towards their race, but because you think they’re more likely to carry cash worth taking, then your mens rea isn’t any worse than any other mugger.  There’s nothing extra-invidious about your crimes.

This is what New York failed to grasp.  The whole policy of hate crimes is to give greater punishment to invidious behavior, yet New York left the whole invidious aspect out of the law.  They wrote it into their policy preamble, but left it out of the definition of the crime.

And now it’s being used as a weapon to get mandatory jail time when the legislature clearly contemplated no such thing.

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ADA Kristen Kane, head of the Queens DA’s elder fraud unit, is quoted by the NYT as saying that’s a good thing.  “We don’t have a whole lot of tools,” she’s quoted as saying.  “We should utilize what the legislature has given us.”

Forgive us, but that’s a load of hooey.

That line “we don’t have a whole lot of tools…”  You know what that means?  It means she sees her job as something other than what it is.  She sees her job as putting people in prison. 

There aren’t a lot of tools, it is true, for getting a fraudster mandatory prison time when the amount at issue is less than a million dollars.  Because the legislature has not set any mandatory prison time for such crimes.

But there are a lot of tools for doing her actual job, which is to see that the actual law is enforced, and that greater justice is done.  She has all the same tools to do that job as any other New York prosecutor.  And many of them seem to do their jobs quite well.

When she’s saying “we should utilize what the legislature has given us,” what she’s really saying is “we think the law should impose stiffer sentences here, and we’re willing to take improper advantage of an ambiguity in the statute in order to get stiffer sentences that the legislature never intended.”

Well, that’s not the DA’s job.  The legislature may have erred in drafting the law too carelessly, but it is flatly unethical for the DA to misuse the law in this way.

And for as long as we can remember, we thought that was dumber than dirt.  The first time we heard this, back in our dim and distant teens, we imagined something like this:

It just made no sense.  And, of course, it’s simply not true.  No undercover cop is ever going to jeopardize his investigation or his safety by admitting to the fact that he (or she) is a cop.  And there is no rule anywhere that says they have to.

But even so, this myth has persisted.  We can’t count how many cases we’ve dealt with where the suspect asked an undercover if he was a cop, the undercover said no, and that was apparently good enough.  You’d think that, after suspects keep getting arrested anyway, word would get out that undercovers don’t have to admit the fact.  It seems like important information, something that would quickly become common knowledge among people who have a reason to care about such things. 

It’s not just lying about being a cop, by the way.  Cops are allowed to lie about anything.

Let’s repeat that: The police are allowed to lie to you… about anything.

The most common example of this is police interrogation.  The cops are allowed to use any deception they like, in order to get a confession. 

For example, they can tell you your partner’s being interrogated upstairs, and just confessed, so you’d better come clean if you know what’s good for you (when they haven’t even arrested your partner yet.)  They can say the victim told them you did it before she died (when she’s actually still alive, and never said anything of the sort).

The biggest lie (and one that works all the time) is that this conversation is strictly off the record.  “Just between you and me.”  Nothing you ever say to a police officer is ever off the record.  If it can be used against you, it will.

The second-biggest lie (also one that works all the time) is that, if you come clean, the officer will make sure you get treated leniently.  He’ll make sure the DA gives you a lighter charge.  He’ll put in a word with the judge to make sure you get off with a lighter sentence.  He’ll only arrest you for the misdemeanor.  Complete horseshit, of course — that cop’s going to make sure you go down for whatever it is you just confessed to — but it works all the time.  People cut their losses, seeing themselves in a hopeless situation, and grasp at the opportunity to at least minimize the bad.

Oh, and if you think innocent people don’t do that too, then you’ve got another think coming.  Innocent people do confess to crimes they didn’t commit, for a variety of reasons.  (That’s a subject for a whole nother myth.)  And lying cops is one of the big ones.

And the cops are completely within their rights to lie this way.  Unlike prosecutors and judges, who have professional ethics to comply with, the police are allowed to use whatever lawful tools they have in order to solve a crime.  It’s not against the law for them to lie.  They’re allowed to.

And so they will.  They’re trained to do it.  They’re supposed to do it.  They’re gonna do it.

You’ve been warned.

But enough’s enough.  He’s been locked up for a couple of weeks, now.  It wasn’t supposed to be like this.  And it’s really hard for Jacki, what with him being out of work this whole time, and not being around to help with the baby.  And he really didn’t do anything wrong… it’s just that, you know… she wasn’t thinking straight.  And now it’s time for her man to come home.

That should be easy enough.  All she needs to do is drop the charges, right?  She’ll just go over to the DA and say she doesn’t want to pursue the case. 

We imagine that something like this is what’s going on in Jacki’s mind:

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Unfortunately, real life is more like this:

(Excuse our hasty artwork.  We never were any good at cartooning.)

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Unless you actually practice criminal law, you probably have no idea how common this scenario is.  People get locked up all the time, not because they actually committed a crime, but because their significant other used the cops as a weapon.

What people don’t seem to realize is that the police do not have any discretion.  When you say someone beat you, or threatened to kill you, or whatever, the police must make an arrest.  They have no choice. 

And it’s no good you coming back the next day and trying to undo your terrible mistake.  You’ve set in motion a machine that you are powerless to stop. 

We see these kinds of cases far too often.  Non-criminal domestic disputes become swallowed up by the machine, which chews people up and spits them out — if they’re lucky — with permanent damage.

It’s not just women calling the cops on their men, of course.  It’s often neighbors calling cops on each other, or students making false allegations against a teacher, or any other kind of situation.  And once they’ve called the cops, there are no do-overs.

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Sometimes, it’s a cultural thing.  There really are people out there whose first reaction is to call the cops to solve their problems for them.  They live in a world where literally everything is done for them by the government.  So their first instinct in any situation is to get government involved.  You literally get moms calling the cops on their own kids for not cleaning their room.  Which escalates, when the cops refuse to get involved, to ever more serious accusations until the cops do get involved.  And then the mom calls sobbing, wondering why her baby is in jail.  To which the only rational answer is “because you put him there.”

But usually, it’s simply because the person who called the cops (1) felt comparatively powerless in the relationship, (2) figured calling the cops would be a big equalizer, (3) either didn’t understand what he or she was setting in motion, or didn’t think it through, and (4) over-reacted.

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So please, next time you’re thinking of calling the cops on your significant other:  Try actually thinking, first.  You’ll save yourself, and your loved ones, a lot of grief.