The Criminal Lawyer

A lot of the law is extremely formulaic. True, human intelligence is required to spot issues, devise strategies, and (most importantly) persuade decisionmakers. But in its actual application, the law is often little more than a series of IF-THEN decisions. A computer could be programmed to do it. This is just as true of corporate taxation as of advanced constitutional law. A law student could outline those courses with nothing more than a flowchart and do okay on the exam.

Knowing the formula is important. It’s specialized knowledge that you usually have to go to law school to get. But it’s only knowledge. It’s not understanding.

It’s like baking a cake. If you know the recipe, you can go step by step through the process and get a decent cake on the other side. If you don’t know the recipe, you’re likely to wind up with a big mess. But knowing a recipe that works isn’t the same as knowing why it works. It’s not going to help you if your ingredients suddenly change, or something new is added into the mix, or you have to use an oven with a very different temperature. In that case, if you want to make a cake, you’re going to have to understand the chemistry of what’s going on, the effect that the ingredients and how they are combined and the heat and the time have on the final result.

Knowledge is the what. Understanding is the why.

Most students can demonstrate their knowledge on an exam, and they’re lumped together in the curve. It’s the rare students who demonstrate their understanding who get the outlier As, however.

In fact, there are professors out there who will announce to the class that the final exam is going to cover things that never came up in class. Topics that were never discussed. Issues that aren’t in any of the books. The students will have to say, based on their understanding of why the law is the way it is, what the answer in that unfamiliar area ought to be.

These are awesome professors. If you ever get one, cherish the experience. Because you’ve lucked into someone who teaches the why, as well as the what. And you are going to be so much better equipped to deal with the law as it changes.

The law does change. Whatever field you practice in, the law is going to change during your career. If you know where the law is coming from, you’ll have a pretty good idea of where it’s going. And more importantly, whichever way it goes, you’ll get why. You’ll understand it better. You’ll be able to use it better, advise your clients better, persuade a court better.

So how does get this understanding?

What you’re looking for is policy. An underlying philosophy or purpose that explains the statutes and cases. What were the lawmakers and judges trying to do? What was the point of view that drove how they did it?

You’d think this would be easy — just look at the legislative record to see all the arguments for and against, the court opinions spelling out in excruciating detail precisely where they were coming from.

But if you try doing that, you’ll soon learn it’s not easy at all. The stated reasons for statutes, regulations and caselaw are inconsistent as hell. They’re all over the map. And what’s more, people are only human. The reasons we give for our actions are rarely the same as our true, unstated motives. We may not even be fully aware ourselves of the actual policies we’re acting on — most of the time because we haven’t reflected enough to actually know what they are, and so they remain unconscious, subliminal. And our brains are wonderfully adept at justifying after the fact.

So it’s a puzzle. The narrators are not telling you the truth. They’re not lying to you, but they’re not telling you the truth. The trick is to pick out the clues from what they say, from the situations they’re reacting to, from the problems they’re trying to solve, and from (most importantly) what they actually do. It takes a fair amount of insight into one’s fellow human beings to solve this puzzle.

And this is what sets apart the merely adequate law professor from the superstar. The adequate professor makes sure you understand what the various disparate laws happen to be. The superstar gives you an insight that explains them all (or most of them, anyway).

Now, there are lots of ways to explain what’s going on. How do you know which theories are best?

As with any other field of study, the simplest theory that explains the most data is best.

So for example, you might have a ton of cases that seem to be all over the place, if you just take the judges at their word. They seem to be espousing a given principle, but their decisions keep pushing the law in a different direction. That tells you that the real reason isn’t the one they’re saying. Maybe it’s emotion. Maybe it’s a desire for a certain outcome no matter what. Maybe it’s just pandering to a perceived public opinion. Maybe it’s just a backroom deal.

And those surface reasons give you a clue to the unspoken philosophy behind them. In a criminal case where the court is performing some impressive legal gymnastics, it could simply be that the desire to punish this guy is more important than any protections the law might have given him. (That’s the opposite of the rule of law, by the way. A good example of saying one thing but doing another.)

You can also watch as repeated reliance on the spoken, but incorrect, principles leads to bizarre outcomes. The exclusionary rule is a good example, where the courts keep saying it’s about deterring the police from violating your rights, when in reality it does nothing of the sort. The rule is intended not to make the police think twice but instead to ensure that violations of your rights don’t get used against you. And you can see how repeated insistence on its deterrent purpose erodes the rule — because in situation after situation the court recognizes that there is no significant deterrent effect, and so says exclusion wouldn’t matter here.

This kind of thing goes on in almost every field of the law.

The trick to understanding is actually formulaic: 1) Look at the facts and the outcome; 2) Look at the stated justifications; 3) Note any disconnects; 4) Apply your own understanding of human nature, various philosophies, history, culture, etc., determine likely explanations for the disconnects; 5) Select the explanation that explains the most data with the least complexity.

Go on, try it!

As we’ve mentioned perhaps a dozen times by now, we do this illustrated guide to law in our rare moments of free time. (Latest post on self-defense law is here.) We make every effort to avoid citing case names or statutes in that guide, because they’re almost never necessary for an understanding of the actual concepts. We also try not to waste time on what the law used to be. It’s common for those who popularize specialized fields of knowledge to tell the story of how a given field has evolved, devoting the bulk of their writing to what people once thought, before getting to how things are right now — and we hate that. Cut to the chase, already!

But the next installment’s going to be about the sources of criminal law, and it would be sort of disingenuous to simply cut to the chase there (“elected officials pass statutes and ordinances, and agencies adopt regulations, now move along” — that’s not really the whole story, is it?). In this particular case, it seems necessary to at least summarize a history of how English and American criminal laws all came about. Because that history is still a big source of the criminal laws we deal with now — occasionally in weird ways.

It’s a fascinating history, and we’re barely going to touch on any of it in our comic. But the surprising thing is how rarely anyone has touched on it at all. The history of criminal procedures is extremely well-documented (and byzantine in its complexity); but if any of you are History majors looking for a topic for your senior thesis or a dissertation, we might just mention that the history of the laws defining crimes is far from exhausted, hint hint.

There are two or three halfway-intelligible histories out there, written during various centuries, and each author makes the same complaint that they’re writing in a vacuum. Each, however, refers heavily to Sir William Blackstone. So we were re-reading bits of his Of Public Wrongs this morning over our coffee (thank you Google Books!) when a thought started nagging in the back of our brain.

It was hard to pin down the idea, but then we had it: Overcriminalization. For a while now, people who pay attention to the law have complained that there are too many crimes, with irrationally high penalties, and that this leads not only to injustice but to the law itself losing its legitimacy. Lately, this idea has begun to gain traction among political types as well. People are starting to realize that, as we’ve written several times before, the problems come from a number of sources: vindictive laws being passed without much forethought in response to notorious one-off cases; progressive politicians outlawing more and more offensive behaviors; reactionary politicians ratcheting up the punishments for everything; and perhaps most insidious of all, unelected bureaucrats imposing criminal penalties on countless (and as yet uncounted) regulatory infractions. It’s so bad that nobody knows for sure what’s a crime and what isn’t, and especially in the federal system the penalties can far outweigh the severity of a given offense.

Why did reading Blackstone bring this to mind? Because apart from merely commenting on the state of the law in the mid-1700s, Blackstone was arguing for reform. He wanted a law that was more utilitarian, more deterrent than retaliatory, more enlightened — and above all, more simplified. He complained that the criminal law as it stood in his time was a tangle of writs and statutes, with new offenses being created all the time without anyone knowing about it. All the different sources of penal laws, and all the previously unknown offenses, were “a snare for the unwary.” The law had ratcheted up over the preceding centuries, so that the number of capital offenses was enormous, and severe punishments were prescribed for the pettiest offenses. All this led to judges refusing to impose the prescribed penalties, while at the same time leading to a growing contempt for criminal laws in general.

Yup, sure sounded familiar. Overcriminalization is something that just seems to … happen… in mature systems. In Blackstone’s time, it happened because of a rapidly-growing administrative role of government, because of officials trying to look tough on crime, because of vindictive one-off laws, because of not thinking things through, and because of simple intertia. Yup, totally familiar.

Still, whenever people start talking about overcriminalization, they don’t start throwing around old Blackstone quotes. Instead, they usually come out with an aphorism they ascribe to Tacitus: “The more numerous the laws, the more corrupt the government.” Which is unfortunate because (1) that phrasing implies a meaning that Tacitus did not intend; and (2) what the old boy really was saying was so much more apposite.

What was Tacitus saying in his Annals, Book III part 27? He’s talking about how the laws were getting out of hand in Ancient Rome:

Pulso Tarquinio adversum patrum factiones multa populus paravit tuendae libertatis et firmandae concordiae, creatique decemviri et accitis quae usquam egregia compositae duodecim tabulae, finis aequi iuris. nam secutae leges etsi aliquando in maleficos ex delicto, saepius tamen dissensione ordinum et apiscendi inlicitos honores aut pellendi claros viros aliaque ob prava per vim latae sunt. hinc Gracchi et Saturnini turbatores plebis nec minor largitor nomine senatus Drusus; corrupti spe aut inlusi per intercessionem socii. ac ne bello quidem Italico, mox civili omissum quin multa et diversa sciscerentur, donec L. Sulla dictator abolitis vel conversis prioribus, cum plura addidisset, otium eius rei haud in longum paravit, statim turbidis Lepidi rogationibus neque multo post tribunis reddita licentia quoquo vellent populum agitandi. iamque non modo in commune sed in singulos homines latae quaestiones, et corruptissima re publica plurimae leges.

Which my antique Church & Brodribb translation has as:

After Tarquin’s expulsion, the people, to check cabals among the Senators, devised many safeguards for freedom and for the establishment of unity. Decemvirs were appointed; everything specially admirable elsewhere was adopted, and the Twelve Tables drawn up, the last specimen of equitable legislation. For subsequent enactments, though occasionally directed against evildoers for some crime, were oftener carried by violence amid class dissensions, with a view to obtain honours not as yet conceded, or to banish distinguished citizens, or for other base ends. Hence the Gracchi and Saturnini, those popular agitators, and Drusus too, as flagrant a corrupter in the Senate’s name; hence, the bribing of our allies by alluring promises and the cheating them by tribunes vetoes. Even the Italian and then the Civil war did not pass without the enactment of many conflicting laws, till Lucius Sulla, the Dictator, by the repeal or alteration of past legislation and by many additions, gave us a brief lull in this process, to be instantly followed by the seditious proposals of Lepidus, and soon afterwards by the tribunes recovering their license to excite the people just as they chose. And now bills were passed, not only for national objects but for individual cases, and laws were most numerous when the commonwealth was most corrupt.

So he wasn’t saying “the more corrupt the government happens to be, the more laws there will be.” He was saying “there were ups and downs, but generally there was a strong correlation between how many criminal laws we had and how broken our government was at the time.” (The word “corrupt” having the older more general meaning of “debased, decayed, changed in bad ways” — the way we’d say “a corrupted hard drive” today — in addition to the more specific modern meaning of “venal, self-serving, bribe-taking etc.”)

And what Tacitus was saying in general was the same thing that Blackstone was saying: there were too many criminal laws, often conflicting, created not for the general need but in order to curry favor with the people, to react to one-off cases, etc. etc.

Yup, sure sounds familiar. Just like old Ecclesiastes said, “there’s nothing new under the sun.” (Or didn’t one of the Epicureans say that first? Or was it one of the older Vedas?)

-=-=-=-=-

Blackstone actually gives us some hope. For his proposed reforms actually were taken to heart — in the new United States, of all places. As the new states were formed, and began creating their laws practically from scratch, they were ideally suited to put these new progressive ideas in place. There was no hidebound tradition to adhere to, no entrenched bureaucracy to upend. Blackstone called for a stripped-down, principled criminal law, and American legal thinkers tried to make it so. Crime was (for the first time in history, really,) identified as an offense against the State, and not the more personal kind of moral offense or private conflict. Lawmakers and judges began to try to explicitly think through different levels of intent and culpability — not as thoroughly as would be done in the mid-20th Century, but still in significant ways. Deterrence replaced retaliation as the driving force of enlightened thought on punishment. These were not frontier hicks making the laws, but educated progressive thinkers well aware that they were creating something new, and trying to get it right the first time.

We don’t have a new nation to start from scratch again, but at least there is precedent for reform. England came around, too — if a bit more gradually. (We probably don’t want another Sulla, though.)

It’s happened before, it could happen again. There’s nothing new under the sun!

So everyone from the Washington Post to Fark is reporting gleefully about the recent acquittal of a Northern Virginia man charged with failing to stop for a school bus picking up kids.  The defense attorney is getting kudos for pointing out that the law, when rewritten 40 years ago, omitted the word “at.”  The resulting language, agreed the judge, only criminalizes a driver who fails to stop a school bus that was stopped.  Absurd, but Virginia doesn’t let judges add words to statutes by interpretation, even if they’re absurd.

So far, so good.  We’re all in favor of forcing the government to do its job properly before being able to impose a criminal punishment.  And one of our pet peeves is poorly-drafted statutes and regulations, many of which seem to have been written by junior high dropouts.  Passing a stopped school bus is incredibly dangerous and richly deserving of criminalization, but we have no problem with someone getting off on a technicality of bad drafting.  A poorly or vaguely drafted statute does not provide the notice of criminal liability that is a basic element of Due Process, and the state shouldn’t be allowed to punish someone for violating it. (See “Honest Services.”)

But on actually reading the statute, we have to say the judge screwed up.  Here’s what it says:

A person is guilty of reckless driving who fails to stop, when approaching from any direction, any school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children.

The error here is not the omission of the word “at” after the word “stop.”  It’s the inclusion of a gratuitous comma after the word “direction” — a comma which is artless, but nonetheless does not change the meaning of the sentence.

Here’s the sentence with the “at” included:

A person is guilty of reckless driving who fails to stop at, when approaching from any direction, any school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children.

That reads even worse.  That’s where the “at” was before amendment.  (But the statute also had a lot of other language as well that was deleted or replaced.  It read fine before it was amended.)

Here’s the sentence with the gratuitous comma removed:

A person is guilty of reckless driving who fails to stop, when approaching from any direction any school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children.

This makes perfect grammatical sense.  It’s still artlessly written, but it scans.  You’re guilty if there’s a bus stopped to pick up or drop off kids, and you don’t stop, no matter whether you’re coming from behind or ahead or the side.

As written, it still says that.  The extra comma (a bane of ancient legal writing) doesn’t change the meaning one way or the other.

Speaking as a card-carrying Grammar Nazi, the judge was simply wrong to think it meant you’re guilty if you fail to stop a school bus you approached.  The same misreading could be used to say you’re guilty if you fail to stop your own car for the purpose of taking on or discharging children.  The Commonwealth cannot appeal from an acquittal, so this case is over, but the defense really was in the wrong here.

How would we have written it?  To convey the same meaning, we’d probably draft something like this:

A person is guilty of reckless driving if he fails to come to a full stop a safe distance away from a school bus that is stopped on any road for the purpose of taking on or discharging children, regardless of the direction in which he is traveling.

Or some such.

Anyway.  Kudos to the defense lawyer — it’s still a perfectly valid victory, and in a way it’s nice to have a foolish judicial decision in the defense’s favor for a change.  But it’s a good thing that driver didn’t hit a kid.  His actions still count as reckless under any definition of the word.

Odds are, if you’re reading this, you’ve lived an admirable life.  You applied yourself in school, got a good job, and worked hard to be a valuable member of your community.  Through your own efforts, you’ve probably earned a position of respect and responsibility.  Maybe you run your own shop, or you’re a partner in a firm, or you’re a military officer.  Your ethics are beyond reproach.  You’re raising your kids to be loyal, kind and brave.  You, dear reader, are doing everything right.

And you, dear reader, can very easily find yourself in the defendant’s seat.  In the crosshairs of a federal or state prosecution.  Facing serious prison time.

For what?  For nothing, that’s what.  You yourself may have done nothing wrong, but our criminal law has devolved so far, so fast, that you can find yourself being prosecuted anyway.

The worst effects can be seen in federal law.  As the regulatory state has expanded, as the “nanny state” has expanded, as the role of the federal government has expanded, the nature of federal criminal law has changed dramatically.  Stuff that nobody in their right mind would consider “criminal” has nevertheless been made into a federal crime, not just by congressional statute, but by regulatory fiat.

Regulatory crimes are the worst, because agency regulations are never (more…)

Now that we’re all immigration lawyers, we figured we’d better take a gander at the complaint filed yesterday by the feds, seeking to strike down Arizona’s new immigration law.  The feds say Arizona’s law is preempted by federal law and policy, and so must be struck down under the Supremacy Clause of the U.S. Constitution, art. VI, cl. 2.  (You can read the complaint for yourself here.  The text of the law can be found here.)

After reading the complaint in its entirety, we have to say that it’s mostly stupid.

The law was hotly criticized by the Obama administration even before it was enacted back in April, so it’s no surprise that this action was filed.  We’re surprised it took this long to do it.  And we’re even more surprised, given how long it took, that the feds did such a shoddy job of it.

In broad strokes, Arizona wants to deter illegal aliens from sticking around in Arizona.  To that end, among other things, the law:

• Tells Arizona police they have to verify someone’s lawful presence if, during an otherwise lawful stop, they have reasonable suspicion that the person might be here unlawfully.  §11-1051(B) [referred to as Section 2 in the complaint].
• Amends existing law, permitting police to make a warrantless arrest if the officer has probable cause to believe that a misdemeanor or felony has occurred, to add that the police can make a warrantless arrest on probable cause to believe the suspect committed an offense for which he could be deported.  §11-1051(E) [in Section 2 of the bill, but perplexingly referred to as Section 6 in the complaint].
• says Arizona citizens can sue for money damages if any Arizona state or local official or agency “adopts or implements a policy” of not enforcing federal immigration laws to the extent permitted by federal law.  §11-1051(G) [Section 2].
• makes it a crime of trespassing to be present in Arizona in violation of federal law.  §13-1509(A) [Section 3].
• amends existing state law against smuggling human beings (§13-2319 [Section 4]) to permit the police to stop a car they reasonably suspect to be in violation of both a traffic law and the already-existing law against smuggling.
• prohibits illegal aliens from seeking work in the state.  §13-2928(C) [Section 5].
• makes it illegal for “a person who is in violation of a criminal offense” to transport or harbor illegal aliens.  §13-2929(A) [Section 5].

The general argument the feds make is deliciously ironic: Requiring compliance with federal law would conflict with federal law.  At first glance, it seems like everyone at the DOJ who approved this complaint skipped Logic 101, and listened instead to John Cleese’s logic monologue on the Holy Grail album.  But this is not really the stupid bit.

Their argument is more along the lines of (1) the feds get to determine policy of how and when the feds enforce their own laws; (2) Arizona isn’t telling the feds what to do, but it’s going to be enforcing the same laws more thoroughly; so (3) Arizona is messing with the feds’ policy.  This is one of the stupid bits, because nowhere does Arizona tell the feds what to do or how to do it.

The Complaint commits some intellectual dishonesty, however, to make it seem so anyway.  They repeatedly misquote the Arizona law to say a citizen can sue “any” official or agency for failing to enforce the immigration law.  They make it sound like Arizona citizens could sue federal officials for failing to enforce federal law.  But that’s not at all what is said.  The Arizona law only (more…)