Category Archives: Uncategorized

Majority v. Right

Whether one looks to God for the glory of the Union or not, the 9th Circuit decision in Newdow v. Rio Linda Union School District is the sort to generate strong feelings one way of the other.  Judge Bea wrote the 60 page majority opinion holding that the words “under God” in the pledge of allegiance is not unconstitutional. To save you some time, here’s my summation of his opinion:


So what? Who cares? What’s the big deal? No harm, no foul.

Judge Reinhardt wrote a 133 page dissent.  It’s filled with fun things, such as footnote 4, taking a swipe at Sarah Palins for demonstrating that she is, indeed, a regular gal in its worst sense.  There’s little question that the words “under God” are a religious reference, inserted during the Cold War to distinguish God-loving Americans from atheist commies.  It’s true that few of us, particularly school children, pay any heed to its actual words, and emit the sounds of a loyalty oath by rote. 

That children stand and do it, because all the other kids stand and do it rather than because they feel a particular desire to emit those particular sounds, is likely the case.  As Judge Reinhardt argues, coercion is just as wrong as compulsion, even if the issue is a tempest in a teapot.  Becoming too ordinary, too accepted, makes the harm trivial, though obviously wrong.  Eliminating the words “under God” from the secular pledge does no harm to religion.  No churches will be burned in the writing of this dissent.

What was most interesting about this decision was the difference in tone between the majority and the dissent, and the reaction each engendered.  In comments to Eugene Volokh’s post merely referencing the decision, commenters lambasted Judge Reinhardt’s dissent:



I wonder if Judge Reinhardt realizes that he would probably be at least somewhat more effective (in the sense of being in dissent or reviewed and reversed by the Supreme Court less frequently) if his tone weren’t so strident and as arrogantly dismissive of colleagues (and supervisors in Washington) who don’t share his point of view. Or whether he’s just given up in his own mind and would rather be “right” (to the Warren-Court-constitution-in-exile movement) than be in the majority.
This comment squarely makes the point: Should Judge Reinhardt have been more concerned with being “right” or being palatable to others?  This reflects a fundamental question that permeates everything from court decisions to blawgs, any place where an expression of opinion appears. 

Most of us have opinions.  Most of us with opinions are afraid to express them, at least when our name is attached to them.  We fear offending others, causing disagreement and disapproval.  We don’t want to start fights.  We don’t want others to think ill of us.  We don’t want to be challenged. We don’t want to be on the outside.

In the rare instance that someone expresses their opinion, they try to do so in ways that are least offensive to others.  The words are surrounded by equivocations, giving us a way out of our opinion if challenged, muddying the impact so that it’s less harsh or striking, even if the price is paid in clarity.  We water down our words to reduce the impact on others, to reduce the rebound on ourselves.  We do everything in our power to try to avoid offense. 

It seems like taking offense has become a national pastime.  It seems like avoiding offense has become a national pastime as well.  The virtue of avoiding offense is extolled.  We would rather be in the majority than right.

This is a crisis of confidence and cowardice.  We don’t believe in ourselves enough to just express what we think.  We fear the disapproval of others so much that we will color our expression, if we’ve got the guts to express at all, to avoid offense at all cost.  We have become a nation of cowards, and we extoll other cowards to make ourselves feel better.  We decry the bold and brave because they remind us of the cowards we’ve become.

When voices are forced to express an opinion, they often jump on the coattails of brave and bold people, like our founding fathers, because they are safe heroes today.  How many of these voices would have had the guts to be one of our founding fathers if they had the chance?  The vast majority would have preferred being part of the huddled masses, though they yearned for nothing more than the comfort of their fellow masses.  It’s not that they don’t have opinions, but they are scared to death to express them at all, and even more afraid to stand up, without their bullet-proof vest, and state them clearly and unequivocally. 

In another situation, I was recently informed that a critical decision was made on the basis of consensus and unanimity.  There was no concern whether the decision was right.  The decision-makers thought they had accomplished a great thing by avoiding conflict and creating consensus, even if the price was doing the right thing.  No one left the room offended, and that was the greatest achievement they could think of.

Judge Reinhardt’s opinion, rather than Judge Bea’s, will be the fodder of much discussion, because it is bold, clear and striking.  It will generate thought, debate, ideas and challenges.  It will offend many.  And it says what Judge Reinhardt means it to say.  He could have chosen to be more collegial, less strident (or less arrogant, as the lovers of blather are inclined to characterize it), but he chose instead to demonstrate the strength of his beliefs by stating them in forceful language and using examples and rhetorical mechanisms to make his point.

Judge Reinhardt has chosen not to be part of the huddled mass, afraid that a strong opinion, clearly expressed, will hurt someone’s feelings.  If you were given the opportunity to join the Sons of Liberty, would you have had the guts?  Or do you hope to spend the rest of your life cowering in the corner hoping that no one will ever be angry at you for saying something they disagree with or hurts their feelings.  Would rather be in the majority than be right?

Moderation In Some Things

After being informed at some length, and in some delightfully colorful language, by certain subscribers that they had enough of receiving the hundreds of spam comments over the past week, I acceded to demands that I moderate comments.  This has wreaked havoc with comments, with real commenters posting over and over, unable to figure out why their comments don’t appear, and just killing the entire flow of the conversation.

I apologize. I’ve blocked and deleted spammers throughout, and eventually they will figure out that they will never get their way.  Until then, please bear with me.  We will win the war of attrition.  Things will return to normal,  I hope.

Treasonous Lawyers? Not

My old buddy Andy McCarthy lets one rip at the New York Times Room for Debate Blog about how the AQ7, the pro bono lawyers who helped Guantanamo detainees are not heroes, or even decent human beings, but traitors to the American people.  Of lawyers defending terrorists, he says:



This is a ludicrous concept, so the profession has to engage in serial deceptions to sell it. Most prominent among these is the assertion that every one, no matter how unpopular, is entitled to counsel. Nonsense.

Only criminal defendants are entitled to counsel, and those who represent them do indeed perform a constitutionally valuable function. It has never been the law, however, that war prisoners are entitled to counsel to challenge their detention as enemy combatants.

. . .
The lawyers chose to offer themselves, gratis, to our enemies for litigation the Constitution does not require. They did so knowing that this litigation would be harmful to the war effort — a fact the Supreme Court emphasized when it denied war prisoners the right to file habeas claims in 1950. The fact that we don’t forbid lawyers from doing this hardly means Americans have to approve of it.
Be careful or you’ll get some of the rabid foam on your tie.

Orin Kerr parses the post and explains why Andy’s shoes don’t match his purse.  While correct, I think Orin tries to hard.  It’s just not that hard to separate the reason from the rhetoric, particularly in this instance.  I know that President Bush went on TV and told us we were at war.  But he was never really good at details, and just because a few bombastic warmongers want to call it war doesn’t make it so.

War is what happens between sovereigns.  War is not subject to redefinition at will any more than calling individuals a name, like enemy combatants, is sufficient reason to absolve us from the rules of our own game.  We’ve called lots of things war in the past 50 years. In fact, we call almost everything that presents a problem a war.  It’s easy.  It’s just a word.  It doesn’t really make it one.

So if Andy McCarthy wants to call a bunch of lawyers upholding the Constitution traitors engaging in treason, I’ll defend his right to do so because the first amendment protects it.  But it’s still just words in a rhetorical war. My response is that Andy’s just being a dope.

Slackoisie Want It, And Want It Now

Those disinclined to cast stones argue that the issues surrounding the Slackoisie in the workplace, or the courtroom, fall back on the old truism that every generation thinks the ones after it aren’t as good as they are.  But as Dan Hull and Stephanie West Allen discuss, the Slackoisie are different, and there’s a reason for it.


[T]ake a look at Stephanie West Allen’s post at her Idealawg entitled. “Are Gen Y kids harder to teach? Are Gen Y employees harder to manage?“. She highlights one part of the puzzle being discussed by John Dunford, a prominent British educator, who has suggested that English children currently in secondary school are “harder to teach” because they are so oriented to the Internet and television that success in school “cannot come fast enough”. In short, they require instant gratification.

The internet has changed everything, and no prior generation has been subject to anything like it.  From Dunford’s work:



Children are increasingly reluctant to put real effort into their studies because they expect success to be instant.

The attitude has apparently spread to A-level classes, where few teenagers read books other than those produced for the syllabus which tell them exactly what they need to know–and nothing more.

Research shows that young people spend an average of 1.7 hours per day online, 1.5 hours on games consoles and 2.7 hours watching TV, Dr Dunford added.

‘They live in a celebrity-dominated society where success appears to come instantly and without any real effort,’ he said. ‘It is difficult for teachers to compete. Success in learning just doesn’t come fast enough.’

But don’t we keep hearing that the Millennials simply care less about money, more about people?  They’re just not like those nasty, mercenary boomers, who will work themselves to death over the almighty dollar.  Not according to San Diego State University Psychology Professor Jean M. Twenge, whose study finds otherwise.  Twenge found that what Gen Y wants is easily summed up as more money for less work.  Put another way, lazy and greedy.



Striking differences emerged for valuing leisure. GenY was much more likely than previous generations to say they wanted a job with an easy pace and lots of vacation time, and less likely to want to work overtime. They also saw work as less central to their lives and were more likely to agree that “work is just making a living.” At the same time, they placed more importance on salary and status. In other words, the younger generation wants to have their cake (big salaries) and eat it too (work-life balance).

Press accounts often mention that GenY wants to help others and have a positive impact on society, but the study found no differences in preferences for jobs that helped others or were worthwhile to society — GenX’ers and Boomers embraced such values just as much when they were young. GenY supposedly want interesting and fulfilling jobs where they can make friends, but analyses showed that GenY actually values these things less than previous generations.
What’s that sound?  It’s teacups breaking.

So what exactly does the Slackoisie hope to accomplish when they take the reins?  Will the cash keep flowing as they sit there during their three hours of really hard work, two to three times a week, whining about how it’s not their fault? 

Unless your admiration for Neville Chamberlain knows no bounds, maybe you should rethink the afternoon ice cream parties as your primary HR recruitment and retention policy?  Enough of trying desperately to find ways to rationalize or enable the Slackoisie.  There is no substitute for hard work, and being a lawyer, even a half decent lawyer (if that’s all you aspire to be), is hard work.

A Name In Search Of A Law

Chelsea’s Law.  The law born of the horrible rape and murder of teenager, Chelsea King.  Surely, after what happened to her, Chelsea deserves a law named after her.  The only problem is that no one has figured out what that law should be.  But no matter, at least there’s a name, and that’s more than half the battle.

From NBC San Diego :



King’s parents, Brent and Kelly, are partnering with the state Assemblyman who represents them in Sacramento, Nathan Fletcher (R-75th District), who is already putting heat on corrections and parole administrators. He’s looking at a long menu of ideas for new legislation.

“Everything is on the table: longer prison sentences, a better system of probation, a strengthened one-strike provision, changes in our parole system, online reporting, GPS monitoring,” Fletcher told journalists at a news conference Tuesday in his Mira Mesa office.  “We will look at every single aspect.”
I’ve often decried ill-conceived and rushed laws devised to honor and remedy bizarre crimes, whether for their overbreadth, their failure to address the problem at hand or their failure to consider unintended consequences.  Often, as here, there is no reason for a law at all, but merely to have those who already have jobs to do, such as probation, do them better. 

Of course, the additional funding for more probation officers and great oversight will be spent on establishing the mechanics of whatever new law comes of this.  Or maybe it will just be used an excuse to get some harsher penalty on the books and pay to keep ten thousand people in jail because of one sick criminal. 

Maybe Assemblyman Nathan Fletcher really believes that this is a gap that must be filled, even if he has no idea what that gap is or what filler to pick.  But begging for a law to go with the name is unseemly.  As a lawmaker, should he have some idea of why he’s promoting a solution, or should he publicly ask for ideas?  Or does he not realize that there is no law that can stop every crime, every criminal, bent on harm, no matter how harsh, how severe we make the laws? 

It’s not that I can blame Chelsea King’s parents for wanting, no needing, to do something.  But it’s those who will use their grief, not to mention the horror they suffered, to gain some political currency.  Somewhere down the line, Chelsea King will be a pawn in a sick game to use this tragedy for ulterior purposes.  Somewhere down the line, the unintended will suffer for it.

I would like to be in a position to state that Chelsea’s Law is bad, but I can’t.  There is no law, no goal, no purpose.  There’s just a name of a dead child waiting to be used.  What a waste it would be if we had a tragedy like this and couldn’t use it.

H/T Kevin Forrester

Readers Mailbag, NYSACDL Edition

I’ve taken the NYSACDL to task lately (actually, for quite a while now), but this latest issue has generated a fair number of emails.  While the vast majority are from people I either know or who appreciate my shining some light on things that members would otherwise learn, I few have questioned both my information and motivation.


Greenfield:

Why do you hate the NYSACDL? If you think you could do a better job, why not work from the inside to improve it rather than lob bombs at those who are doing the hard work. 

First, I don’t hate the association.  I am amazingly disappointed in what’s become of the association, but my criticism of what is happening always includes my view of what I think should be happening. In other words, it’s a message, of what is going wrong as well as what the right thing to do would be.  That it’s taken as hatred by some shows either serious self-esteem issues (an endemic problem within the Board, by the way) or abject defensiveness. 

I worked long and hard from the inside of the association, as chair of the Amicus Committee (when there was a committee), director and vice president.  But the nature of the association changed over time, in some ways for the better but in more important ways for the worse.  When it reached the point that I, in good conscience, could not add my name to the actions of the board, I resigned. That’s what honorable people do when they find themselves unable to support something.

The NYSACDL, or some facsimile, is vitally necessary to the welfare of the private criminal defense bar, if it understood its mission and if its stewards had the courage of their convictions.  At the moment, they don’t even have convictions (no pun intended).  The association has been wandering around lost for years, and most of the board doesn’t even realize it.  They are either too busy patting themselves on the back, trying to figure out how they can further their personal ambition, to wonder why the association exists, or so moved by glorious platitudes that they refuse to recognize why it exists.

Should the NYSACDL somehow right itself, recognize its mission and serve its members, I will support the association vigorously.  Until then, I will say what’s wrong.  I can do that.  If the officers weren’t so afraid that I will spill their secrets and ruin their dreams of glory, they might call me the loyal opposition.  Instead, they just snipe at me behind my back.  I don’t mind. It’s what I expect of them.


Greenfield:

Regardless of who’s right about the NYSACDL, your attacks on the association are hurtful and mean-spirited.  You can disagree but still maintain a level of collegiality and decorum.

An interesting point.  I wish I felt that I could, but I don’t for a number of reasons.  First, I’ve tried to make many of the general points that are included in my posts in the past, but unless they were spelled out in excruciatingly clear, brutal language, they went right over people’s heads.  Nuance never played well.  Not only did they not get it, but they easily shrugged it off when it wasn’t strong enough to compel attention.  In other words, it’s all fine to maintain decorum provided you don’t mind it being easily ignored. 

As for collegiality, this has been one of the factors that has led to the downfall of the NYSACDL as a viable force for the criminal defense bar.  Everybody’s scared to death of offending anyone else, and even the slightest hint of wrong raised whines of hurt feelings, followed by denials, apologies, sobbing and acts of contrition.  Is it cowardice?  In part, but it’s also the desire to be perceived as good, nice and friendly by others in the bar, whether in the hopes of a referral or just the general desire to be liked.  It’s precluded, however, any real discussion of problems and any attempt to arrive at real answers.

As I was informed following the latest resolution, it was a victory of consensus.  Consensus.  That’s what the association believes is more important than right and wrong.  Making everybody happy, or more precisely, offending no one since very few end up happy, is the goal.  Whether they achieved that goal with a worthless resolution I don’t know, but they passed up, yet again, a chance to do the right thing by choosing consensus.  Mind you, appeasing 10% of the membership at the expense of 90% isn’t really consensus.

This wasn’t the NYSACDL of old.  It had guts.  The directors and officers fought like cats and dogs, and fought hard. Right and wrong mattered.  People were offended all the time, but they were tough enough to take it.  And the end result was that the association stood up for the private criminal defense bar, no apologies necessary. 

So if you want collegiality, and are prepared to give away the purpose of the association to achieve it, then you will find this board to your liking.  As for me, I’m happy to decry the blue wall of silence, and equally happy to call out the association when its hiding behind the pinstripe wall of silence.  When did criminal defense lawyers become so afraid, so fragile, that they can’t stand up to a challenge?  I’m terribly sorry that I’ve caused so many hard feelings, particularly because I like many of the individuals involved, but I refuse to be part of the teacup brigade or another grocery clerk for the association.  And if they hate me for not being collegial, so be it.  I can take the heat.  What I can’t take is the rampant fear of criticism


Greenfield,

Is it that bad?  Has the NYSACDL gone that far astray?  Can it survive?

Yes, yes and I don’t know.  Put aside the rhetoric and look at the nuts and bolts.  It runs some CLEs, but so do plenty of others. Some of the CLEs are decent, some pretty awful.  It does some amicus work, but mostly by riding the coattail of the NACDL.  It certainly isn’t leading the pack within New York State.  It throws a dinner to honor a prosecutor that loses money (though how much is unknown as they aren’t revealing numbers this year).  And it has a listserv that a very small proportion of the members use, and half of the users do so for self-promotion.  If this what you signed up for?  It this all you want out of an assocation?  Are excuses almost as good as accomplishments?

Whether it can survive is a financial matter. It’s on the balls of its heels financially, the Morgy dinner have been a disaster.  And yet, the board and officers learned nothing from the fact that members stayed away in droves.  The list of reasons why it might not survive is long, but there’s only one thing that will give it life, serving the nuts and bolts needs of the members. Instead, they think only of gaining and keeping members as a means of collecting money, not because members are the reason why there is an association in the first place.  That attitude is, and should be, the kiss of death.

And by the way,  if any officer or board member wants to find out what I’m up to, all they have to do is ask.  Instead, they send emails to each other whining about how mean I am to them and proving, yet again, that they don’t have the guts to stand up to the slightest criticism.  What a bunch of cowards.

The Best Job In The Courthouse Is Outside

Did you really think that it was all about selling hot dogs boiled in water from the men’s room?  Come on.  As a defendant’s family walks through the courthouse doors, wondering where to turn for trusted advice, who can be trusted more than the guy selling frankfurters?

The Houston Chron takes this dirty little secret public



Defendants heading to Houston’s criminal courthouse every morning can stop at Mark Lynch’s hot dog cart for a sandwich, cold drink, maybe even a shot at deferred adjudication.

Snacks and drinks may pay the rent, but for the past five years, Lynch has had another steady stream of revenue — signs advertising lawyers who “are in the courthouse this morning.”

“It’s a prime location,” Lynch said of the food cart-cum-billboard, a courthouse fixture since 1997. At capacity, the cart can support six signs at $350 to $375 a month. It rarely is full.
At $350 a month, that’s a lot of hot dogs.  And if you think this is just a Houston phenomenon, do you notice how many hot dog carts are around 100 Centre Street in Manhattan?  Is it because criminal defendants love hot dogs more than anyone else?

Of course, putting a sign up on the umbrella stand has its down side as well.  It’s as certain a way of letting the rest of your fellow lawyers know how desperate you are for business, and how low you’ll go to get it.  It’s, well, embarrassing.  Do you really want to broadcast to the world that you’re the sort of lawyer who does misdemeanors for $99?  But for those who do, and are unashamed of doing anything and everything to make a quick buck, it’s definitely a high exposure location.

Of course, there’s one point that the Chron missed in its article, an even dirtier little detail than paying to put your name on the hot dog cart.  With a bunch of signs competing for defendants, how is a defendant to tell which lawyer, amongst the various bottom feeders, he should select?  For this, they turn to the only person they can trust at the courthouse, the hot dog vendor.

Aha.  That’s where the big bucks come into play.  For an extra $50 per case, the hot dog guy whispers the secret answer into the ears of the hungry defendant.  It’s a dog eat dog business, you know.

For those of you who are busy spending big bucks trying to spam the internets to get your website on the first page of Google, or hiring newly minted experts to teach you how to twit your way to wealth and success, maybe you would do better to think with your stomach.  Have you ever wondered why the hot dog guys are always smiling?

Apologia For An Imperfect Sentence

Judge H. Lee Sarokin spent 17 years on the bench in the District of New Jersey and 3rd Circuit.  He then retired, moved to California and wrote a post at HuffPo.  Whenever a judge of his stature writes, it’s worth a read to understand better what’s happening in the mind behind the robe, and Judge Sarokin’s post offers much, and little.

The post appears to be motivated by the criticism of the courts for allowing John Gardner, accused of the rape and murder of Chelsea King, to go free.  Why, comes the followers of John Walsh, do they let these animals out?  After extolling the virtues of the presentence report provided federal judges, Judge Sarokin explains:


How does this happen? My experience has been solely in the federal courts, where few crimes involve acts of violence like murder and rape. But I suspect that most of the state courts operate in the same or similar fashion. First, let me assure you that it is nothing like the TV judges, who rap their gavel, impose sentence or render a decision in a flash and then say: “Next case.”

But sentencing is far from a science. One of the reasons sentencing guidelines were enacted was to reduce as much a possible the discrepancy based solely upon the predisposition of the sentencing judge — the tough sentencer v. the lenient sentencer. A sentence should not depend on which courtroom a defendant walks into. But the biography, the sentencing guidelines, the penalty standards based upon the crime committed, do not spew out a uniform sentence. A judge on sentencing day hears the arguments of counsel for and against incarceration and frequently statements of remorse from the defendant; sees the anger and hatred from the victim and/or the victim’s family; observes the parents, wife and children (many brought to the courtroom as infants) of the defendant, reads of the public’s cries for vengeance and punishment and the personal letters begging for leniency and attesting to the good character and good works of the defendant. We also think about rehabilitation and deterrence, although I understand that rehabilitation of sex offenders is unlikely, and we have no way of knowing whether the risk of punishment has any effect.

What’s remarkable about Judge Sarokin’s description is that he confirms our worst fears, that after a while, it’s all routine.  In a paragraph, he’s ably outlined the structure of any sentence, every sentence, as if it’s mere Kabuki theater and we’re merely playing our roles in the production.  Yet my sense is that this isn’t Judge Sarokin’s intention, to take what is likely the most significant moment in a person’s life, the moment of sentence, and turn it into a banal exercise.

But what’s missing from the description is what distinguishes one human being from another, one sentence from another.  Rather than offer insight, Judge Sarokin offers his apology.


We are not God, but we play God in these moments. The understandable public reaction in cases such as Chelsea King is to execute, forever incarcerate or medically disable persons who are likely to re-commit such terrible acts. Balancing the need to protect the public within the limits imposed by the law and the Constitution is an awesome task for a judge. We hope we get it right and avoid the horrific tragedy of families like those of Chelsea King, but sometimes we fail in that undertaking despite our best efforts or because of limits imposed by the law.
It was the peculiar wording of this paragraph that caught my eyes, and caused some concern.  On the one hand, there is “the need to protect the public.”  On the other, “the limited imposed by law and the Constitution.”  Is Judge Sarokin saying that they would do a much better job if it wasn’t for their hands being tied by law?  Is protecting the public the predominant interest vindicated at sentence?  Clearly, he makes no mention of any other factors set forth in 18 USC 3553(a).  Does that mean that they are subsumed in his “limits of the law?” 

What isn’t said here is how these “not God” creatures perform this “awesome task.”  It remains every bit as mysterious after reading Judge Sarokin’s post as before.  While noting “we hope we get it right” (us too) and “avoid the horrific tragedy of families like Chelsea King,” he neglects to mention the horrific tragedy of the families of the innocent, or those sentenced to draconian punishments because tough on crime is the tastiest flavor in Washington.  While the post is clearly driven by the questions raised in the Chelsea King murder, and ignores the detail that John Gardner has yet to be convicted of anything, it leaves the impression that the only concern on a federal judge’s mind is how to put someone away for as long as the “limits of the law” will allow.

From the perspective of anyone involves in the criminal justice system, Judge Sarokin’s position, that’s not easy to determine an appropriate sentence, is hardly news.  What is news is the depth of concern demonstrated when a sentenced prison re-offends, particularly when it’s a sex offender (who the judge specifically notes is unlikely to be rehabilitated).  No one can argue that this is, and should be, a concern.  But if that’s the only concern, and the only countervailing force is the limits of the law, Judge Sarokin reveals some very big problems in the mindset of the federal sentencing judge.

It’s Not How You Kill, But Who You Kill

While this isn’t going to shock anybody, the likelihood of being sentenced to death has been found to correlate with the status of the victim, according to new research by Scott Phillips, associate professor of sociology and criminology at University of Denver.  Via Medical News Today :

A defendant is much more likely to be sentenced to death if he or she kills a “high-status” victim, according to new research by Scott Phillips, associate professor of sociology and criminology at the University of Denver (DU).

According to his research published in Law and Society Review, (43-4:807-837), the probability of being sentenced to death is much greater if a defendant kills a white or Hispanic victim who is married with a clean criminal record and a college degree, as opposed to a black or Asian victim who is single with a prior criminal record and no college degree.

Naturally, the disparity in the application of the death penalty is further exacerbated by the race and status of the defendant as well, so that a poor single black accused of killing a married white with children and a job doesn’t stand a chance.

And where does a sociologist go to conduct such a study?  Well, science, like everyone else, employees the Willie Sutton method. They do to where the killings are:



“The concept of arbitrariness suggests that the relevant legal facts of a capital case cannot fully explain the outcome: irrelevant social facts also shape the ultimate state sanction” Phillips says. “In the capital of capital punishment, death is more apt to be sought and imposed on behalf of high status victims. Some victims matter more than others.”

Phillips research is based on 504 death penalty cases that occurred in Harris County, Texas between 1992 and 1999.
The capital of capital punishment.  That’s the sort of thing one puts on the signs leading to town, with one of those revolving “population” wheels so that it can be accurate 24/7.  Every locale needs something to generate local pride, and it is a catchy phrase.

The validity of the study, unfortunately, is suspect for the same reason that Harris County made the study viable.  It’s Harris County.  The study couldn’t have been conducted in Rochester or Boston, Atlanta or Santa Clara.  They don’t execute enough.  The data pool is way to shallow to make it worth the bus ticket to get there. 

But Harris County is another matter altogether.  In a mere 7 years, there were 504 death penalty cases.  Not exactly proof of general deterrence.  The problem is that as soon as you find a place with that many murders, that many capital cases, that many defendants being charged, convicted and sentenced to death, as compared with the rest of the United States, you’ve already got an anomaly.  There’s a reason Harris County is the capital of capital punishment, and it’s not because it’s working really well for them.

Oscar Wilde defined cynic as a person who knows the price of everything and the value of nothing.  In light of this study, that seems to be an awfully good description of the people of Harris County who think execution is a fine solution.

A while back, Mark Bennett, who happens to be a criminal defense lawyer in Harris County, explained to me, New York hick that I am, how the local temperament worked.  Some people just “needed killin’.”  That cuts both ways, applying both to the defendant who is charged with murder as well as the person who happened to be on the business end of a gun.  It appears that there’s an invisible scale, a big one, big enough to put a man on either side.  If the defendant is of higher status than the victim, a homeowner let’s say, while the victim is some nasty kid walking across his lawn, the balance tips in favor of the homeowner and should he pull out his shotgun and blow the kid’s head off, the homeowner wins.  The kid needed killin’.

No reason to go through the various permutations of relative status.  You get the point.  The only thing clear is that in Harris County, they can place a price on every head, but can’t grasp the idea that every human life has value.  It appears that Professor Phillips wasted his time studying Harris County, the capital of capital punishment.  He could have gotten the same result by reading Oscar Wilde.