Sheridan: Con-Law

DOUBLE STANDARD

Criminal trials are morality plays where, in the last act, a member of the audience is sent to jail, for by the time of sentencing, the defendant who triggered the production can only just watch, along with the rest of us.

Apart from going to trial and winning, the two most usual ways of ending the performance are (1) to arrange a plea bargain in which the charge is selected on which to stand convicted, and the duration of any jail sentence.

The public has an interest in this because in California the prosecution is brought in their name, as in "The People of the State of California vs. John and Jane Doe.  The prosecutor says he represents "The People" or "the Government" as in "United States vs. Al Capone."

The people's representatives in state legislatures and Congress show how strong they are against crime, until, that is, they are themselves prosecuted, something they must think will never happen, by reacting to the latest headlines by passing ever more punitive anti-crime laws. 

The president comes down strongly against crime, blaming the courts for allowing criminals to run rampant, and the warden for coddling prisoners, when not executing them.

Congress enacted the federal Sentencing Guidelines, a volume listing all federal crimes and a range in points representing months in the federal penitentiary for each violation, depending on seriousness, amount of loss, injury, use of weapons, etc.  On the inside back page is a matrix setting forth in the 'down' column the range these points, arranged in groups.  Across the top is a range of points according to the defendant's record of contacts with the criminal justice system, ranging from diversion to misdemeanor to felony convictions to imprisonment.  The further down the page, and across, you fall, the longer you go to prison.

Lying to federal agents, including federally insured banks on credit applications, and then to the investigating agents, can result in all sorts of violations ranging from fraudulently obtaining credit, to making false statements to a federal officer, to obstruction of justice, and probably all three.

It is usually understood that if you admit guilt early in the process and spare the State the expense, effort, and risk of trial, that you get a break.  But if you take the government to the mat, you get what you deserve.

Lawrence I. "Scooter" Libby was convicted of perjury and obstruction of justice for allegedly false statements made to an investigating grand jury for which the sentencing judge, appointed by Pres. George W. Bush, sentenced him to 30 months in the penitentiary.  The judge stated in sentencing that this was within the guideline range for such offenses, despite the lack of criminal history (Libby was an experienced attorney serving as chief of staff for Vice-President Dick Cheney), and that people in high places had a higher duty to conform their conduct to the legal requirements.

Judith Miller, a N.Y. Times reporter who had interviewed Libby, but did not yet report on the Valerie Plame controversy ("Plamegate"), was imprisoned 80 days for her refusal to answer grand jury questions, citing a non-existent federal reporters privilege (see the Branzburg decision, 1982, elsewhere on this site).

Before serving so much as a day in prison (the authorities of which had already assigned Libby a number), Libby was pardoned by the president as to the jail sentence only.

The president explained that Libby's sentence, 30 months, was too severe.

Jaws dropped all over, because criminal defense practitioners, prosecutors, judges, probation officers, and probably the entire prison population in the nation, and their families, millions of people, plus the ordinary citizen, all know that bus loads of criminal defendants are daily imprisoned for sentences ranging from within the guidelines to those with mandatory minimum sentences.  But these folks don't have the president covering their back, quite the opposite, in fact.

Libby, however, was covered.  Bush couldn't let the Dirty Tricks Chief of his Hatchet Man, Cheney, go to prison for supporting the team.  The Commander-in-Chief must take care of his own, or he's no chief and his sub-chiefs will wonder when they're next.

The U.S. Sentencing Guidelines were declared unconstitutional to the extent that they were mandatory and allowed the judge to consider matters not proved to a jury.  Not content with this, the president, George W. Bush, and his Attorney-General, Alberto Gonzales, are pressing to push a bill that would reinstate the mandatory nature of the sentencing guidelines along with their mandatory minimum sentences which so many felt resulted not in equality of sentencing but downright unfairness.  The reason the guidelines were enacted in the first place was because a bank robber from the East Coast for example, might find himself in the same cell as a bank robber with a similar background from the West Coast, the one doing five years and the other twenty.  Somehow it felt unfair for Mr. Twenty to see Mr. Five leave him stranded in durance vile for the next fifteen years while at the same time enjoying the singular power to go out and rob more banks.

Will Mr. Libby will now be at liberty to tell all the falsehoods he likes, accidentally or on purpose?  Or even the truth?  No, for he's on probation.  If he tells the truth now, and contradicts his earlier lies, the government may claim that he's lying now and was telling the truth then.  His mouth is effectively shut.  The president and vice-president can rest more easily with Libby gagged.

This is a wonderful system of justice when you stop and think about it.  It is the only system in the nation which is impervious to correction.  The medical system accidentally kills patients with regularity, some 100,000 per year, I've read, every year, but they have committees of doctors on hospitals to review the mishaps so they stop making the same ones all the time.

Not the justice system.  We promote our mistake makers.  Prosecutors who secure convictions become judges.  We don't really care how they do it.  Former prosecutor Nifong of Durham, North Carolina lost his job, not because he was caught out, but because he was caught out so publicly that he made the others look bad.  He endangered the system of injustice, the one we pledge allegiance to at ballgames: "...And justice for all...Play ball!"

Bob Egelko, the Con-law writer for the San Francisco Chronicle (www.sfgate.com) has today's banner headline story on this, below:

NUTS TO JUSTICE

The basis of our system of law is that it has to be rational.  It has to function rationally.  There has to be a reason for everything we do, and when the reason stops, we must stop doing whatever crazy thing we've been doing.  This is why we stopped dunking witches.  We didn't suddenly go soft on witches.

If we find that a law is counterproductive, actually working against what it was supposed to do, it can be held unconstitutional.  For example, the State of Iowa wanted to prohibit the use of double-bottom freight trucks from being used, deeming them to be less safe than the more common single tractor trailer combination known as a semi-trailer, or "semi."  The problem was that Iowa was unable to show that doubles were involved in more accidents than semis.  The trucking companies were able to show that doubles were no less safe than semis.  So the Court held that the Iowa statute failed rational basis, and in the process placed an undue, meaning an unjustified, burden on the free flow of goods across state lines within the U.S. common market.  Kassel vs. Consolidated Freightways Corporation (1981).

In Constitutional Law terms, this means that all statutes, rules, regulations, customs, practices, licenses, permits, and whatever other acts of government that exist must, in order to be upheld as constitutional, must pass the so-called "rational basis" test.  This is the easiest of all constitutional tests.  Some of the nuttiest things pass this test.  It is such an easy test that it has come down to whether the Supreme Court can say that the legislators who enacted a challenged measure could rationally have believed that they had a rational basis, even if the legislators were nuts.  See Williamson v. Lee Optical Co. (1955) in which a state legislature enacted a statute prohibiting anyone but licensed medical doctors and optometrists (the folks who refract your eyes, meaning they have you look through lenses at letters on the wall and you state which is more fuzzy or less, from which they deduce your lens prescription, ground by opticians) from fitting eye-glasses.  That let out opticians, who grind lenses and put them in frames.  The opticians sued, claiming this was nuts, they should be allowed to fit lenses to faces and make a buck, too.  The Court held it wasn't nuts, even though it may be in many cases.

The point of the case is that the Supreme Court pulled in its horns, once and for all, and refused to substitute its judgment for that of the legislature, in this case that of a state (Oklahoma), but also a signal as to Congress, as well.  The result would have been different had the Court held the Oklahoma statute to be rational.  Finding any degree of rationality saves the statute.

Is the death penalty rational?

What good does it do except to satisfy our retributive sense of justice.  It teaches no one, except that killing people is a good in itself, otherwise the state wouldn't do it.  It deters no one, otherwise the homicide rate would decline after each well-publicized objection.  It brutalizes those who perform the execution (they insist on anonymity), and those in whose name the killing, sometimes called judicial murder, is done.  But for those of us who continue to live in the Dark Ages, the death penalty is good.  It reminds us of our earthy roots.

We do have a rule, however, that ones execution must at least serve to inform the executee that your deed was bad, you are condemned to die, and now, by God, you're gonna geddit, once and for.  That'll teach you, you miserable SOB.

Since we have this good rule, however, this means that if the person to be executed is himself crazy at the time of the execution, it must be called off, meaning postponed until the person is sane enough to be killed by the state, to teach him this lesson.  There's no sense executing a crazy may; he may think you're playing a game or doing him a favor, and we don't want that.  We want the SOB, who richly deserves it, to squirm as he fries, or inhales the peachpit-scented cyanide gas, or feels the potassium injected into his veins to prevent him from breathing.  We want him to know, and repent of his evil ways.  Repentance is big with us. 

So the last thing a crazy person on Death Row would want is to be given pills to restore sanity, because then, Catch-22, he can be put to death.  But the state wants him to take these pills so it can kill him.  But his lawyer wants him to continue to refuse the medication in order to keep him alive, albeit out of his mind.  The lawyer can point to what a good job he's doing keeping his client alive, which may go over big in criminal justice circles.  Meanwhile, the state, and the victim's family, grinds their teeth and wages appellate war.  The family may have bought into the idea that killing the dude will bring them, at last, an elusive and nebulous concept, created by newspapers and standup network interviewers, called closure.  They might ask the surviving family, right after the killer is executed, whether closure has set in yet, as though closure is a magic curtain that suddenly falls as in a theater where the audience can walk out, have a drink, and fergeddaboudit.  Somehow, I don't think real life works quite that cleanly, do you?

At any rate, whether it does or not, see the column below by Washington Post writer Richard Cohen who not only highlights the craziness of our death penalty law, to the extent it is crazy, that is, and while he's at it, he brings up Pres. Bush, who is responsible for killing more American soldiers in Iraq than Osama bin Laden is responsible for killing innocent Americans and other civilians at the Trade Center on Sept. 11, 2001.  Why?  Because he was certain.  Wrong, but certain. See how certainty kills, below.

And do have a happy new year.