Years ago, Carl Malamud took on a valiant cause, to make law free for all. Statutes would be online. Caselaw would be online. No longer would a person need a law library with shelves lined with books, with pocket parts, to know what the law was. No longer would someone have to be a lawyer to read law. Law was for all of us, so why shouldn’t all of us have access to it?
It was a sound argument and a virtuous goal. With access to legal source materials, people would have the ability to know what the law is. Of course, having the ability isn’t the same as using that ability. It occurred to me yesterday, in the aftermath of Derek Chauvin’s sentence, that the problem isn’t the availability of legal information. The problem is that people just don’t care enough to learn and, more importantly, won’t let information get in the way of their beliefs.
After it was announced that Chauvin was sentenced, I made a fairly obvious twit.
A very long sentence for a non-intentional murder. https://t.co/guEilMuuAI
— Scott Greenfield (@ScottGreenfield) June 25, 2021
Granted, I was well aware that passionately faux anti-carceral folks, for whom the sentences for people they love should be abolished with prisons, while sentences for people they despise should be life plus double cancer, would be outraged by my twit. After all, ideology demands no consistency, and any rationalization will do when it’s a cop who killed a black guy. And then, there were also the principled, taking a huge risk by clinging to their integrity.
While there was some of that, mostly from the woke baby lawyers, what was more prevalent, were the replies challenging the words “non-intentional.” This wasn’t an opinion about what was going on in Chauvin’s mind, but merely a statement of fact, as the top count, and the count upon which he was sentenced, was felony murder under subdivision 2 of Section 609.19 of the Minnesota Statutes.
Subd. 2. Unintentional murders.
Whoever does either of the following is guilty of unintentional murder in the second degree and may be sentenced to imprisonment for not more than 40 years:
(1) causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second degree with force or violence or a drive-by shooting;
As any lawyer should know, an intentional murder is one where a person has the specific intent to unlawfully kill another individual and does so. To expect non-lawyers to understand this is to ask too much. But to ask non-lawyers to understand that the charge for which Chauvin was being sentenced was felony murder, or as the statute makes plain because it uses the words “unintentional murder,” shouldn’t be too much of a stretch.
Yet, it was.
I take no issue with those who felt compelled to reply to emphatically inform me that it was intentional, and that I was either a bootlicker or white racist for saying it was non-intentional. Their passions were flowing and Chauvin was the poster boy for police racism. And it was murder. MURDER. What else could it be but intentional?
what the fuck did he think would happen, george floyd would be granted the superpower to bend spoons with his mind and pick winning lottery numbers if deprived of oxygen long enough
The notion that if you build it, they will come, may work for baseball diamonds in corn fields, but not for law. Statutes are there to be read. So are most cases. But reading takes time and energy. Understanding takes thought. Insipid, and often incoherent, outrage is easy, and often enjoys the validation of the similarly outraged who similarly couldn’t be bothered to take a moment to gain a modicum of knowledge before making sure the twitterverse knows their most visceral feelings.
It was a good idea to democratize the law, to give people the opportunity to read what lawyers read, to see what we’re talking about, to have a functional understanding of the rules of society by which we conduct ourselves. It could have made a difference if people availed themselves of these resources. But no, they chose not to. It was a good idea that just didn’t turn out the way it was intended.
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“I tell you, with this new Information Superhighway just think of how well-informed and empathetic to other perspectives humanity will become in the 21st century.”
It’s the modern variation on Oscar Wilde’s definition of a cynic: Someone who knows the stats on everything and value of nothing.
Sounds like an upgrade from where we are, considering what the prevailing voices “know” and value.
That you make the statute available isn’t the same thing as getting folks to read, let alone understand, it. You can lead a horse to . . . . (Bah, you get it!)
On the other hand, and for understandable reasons (because there’s nothing rational or understandable about it), nobody understands sentencing, a process where the judge (sometimes with help from guidelines, sometimes not) picks a number out of the ass and TA DA!!
Ain’t no amount of study gonna make sense of that.
As we’ve both explained for far too long, sentencing is nothing more than judicial voodoo, the numbers have no grounding in reality. But the offense for which sentence is imposed need not be a mystery unless you really want it to be.
Or it’s just easier to be ignorant. Put murder in the verdict and don’t expect anyone to read beyond that. It’s not so much “I refuse to learn” but “what else is there to know?”
Kind of a corollary to Hanson’s Razor.
There is no expedient to which a man will not resort to avoid the real labour of thinking.
–Sir Joshua Reynolds
Well, the Oregon legislature passed a bill last week that would remove the requirement that high school students demonstrate proficiency in reading, writing, and math, at the 10th grade level, for the next 3 years, in order to get a diploma, because COVID made it unfair. So, even if the laws are made available, people are losing the ability to read them, because the legislature wants to make them feel better.
If you’re not going to bother reading anyway, what use is the skill?
Putting my tin foil hat on, I think this is considered a feature, not a bug. Reading is a very dangerous ability – people could read the wrong stuff and get the wrong ideas. Most people don’t need to be able to read or write or do math any more. They just have to understand the spoken words uttered by their betters, and OBEY. Look at all the unpleasantness that arose when people became able to read the Bible and did not have to just take the word of the priests.
The work to open the laws has worked, but it’s not in the emotional arena of criminal law or the mountainous libraries of law books.
The winners have been folks who want to know “what is the building code requirement for thickness of this thing?”. Vast fields of regulatory requirements are being gradually opened, so that you need not spend thousands of dollars every year for the current regulations. It’s a different problem and a slowly growing success. Some of Malamud’s earliest work was in freeing regulations. I have one of his “freed” regulation publications dating to 1995, and many of those regulations remain in effect. Buying copies of all those regulations today would cost over $400,000.
Dealing rationally with the difference between “intentional” and “unintentional” is a very different matter, and a skill that is rarely taught or practiced. That’s a shame. I don’t expect open law to help.
I can second your comments about the regulatory requirements. I used to regulate nuclear power plants for the USNRC, and when the internet first started up, I was one of a handful of people who wanted to do useful stuff with it, and the first thing that we thought of was to put our regulations and other regulatory guidance on-line. We immediately ran into a roadblock because one of the senior managers had just sold the right to publish our regulations to a private organization which was going to sell them on CDs, at a very hefty price. I think he got a bonus for this activity. We did not understand how he could “sell” the CFR, and his contract soon fell apart when Newt Gingrich had the same idea we had, and pushed thru the plan to make ALL of the Federal information public on the web.
The only problem left is all the building codes, which are created and maintained by semi-private professional organizations like the National Fire Protection Association, ASTM, and ASME. They have made the codes semi-available to the public, but it is a real pain to read them as they are formatted. As a public citizen, I find it an abomination, but I do understand that they will have all sorts of financial issues if they can’t sell hard copy. They are in the same bag as the newspapers and purveyors of telephone books (remember them?). They should just get over it and stop printing the stuff. The professionals that participate will continue to do so, and the standards will continue to be updated. They will just lose the money to have grand offices and high salaries for the top people and staff and celebrations of the latest issue of NFPA1.
One toke over the line. I’m sure there’s a reddit which would benefit from this regulatory discussion, but not here.
So you made a twit that ignored why the judge believed a lengthier sentence for nonintentional murder was appropriate, and got reacts from people who are also incapable of seeing outside their biases, and came back here to decry democracy.
You’re a real piece of work Greenfield
You said “twit.” I feel so validated.
How much glue did you huff this morning?
Be nice to Jay. If he doesn’t comment to let me know how wrong I am, then I’m left to wonder where my analysis went wrong.
Making law accessible was not a bad idea. It has made a lot of stupid people on the Internet think they are competent to practice, but they can only do it on the Internet.
Chavin still has his tax charges and his federal charges to deal with. He has to be made an example of, and will probably never serve all the state and federal time they will pile on him.
The more aspiration part was that lawyers would become superfluous as the groundlings could access the law on their own. As it turned out, access is still a long way from understanding. But even if they have access, that doesn’t mean they’ll bother to avail themselves of it. And why bother when no one gives a shit anyway?
There are those few whose understanding is vast, while for the rest it is at best half vast.
The perpetual problem is the former recognizes its limitations while the latter does not.
With the minimum probation and the max 40 years, I figured the judge would land about halfway.
Objectively, it is a stiff sentence for an unintentional murder where the defendant has no priors; but nothing has been objective about this case from the beginning.
Access provides neither the desire, nor the ability to read, much less attempt to comprehend. With the amount of competing content, how can we non-attorney stooges be expected to make the effort ? Off to watch this awesome video a guy lighting a bottle rocket in his buddy’s butt crack?
But cute kittehs.