In yet another rehash of how and why false confessions happen, with yet another sanitized view of how it can be addressed, Doug Keene and Rita Handrich at  The Jury Expert go on at length to remind us of what we already know: false confessions happen and they’re best addressed if the stars align, judges allow what they rarely allow and jurors are just as incapable of distinguishing a false confession from a true one as they’ve always been.

One of their key takeaways is that if all the players in the drama were more inclined to believe that false confessions occur, and care, it would go a long way toward eliminating them.  They suggest some fixes, such as banning deceptive interrogation tactics, videotaping, using transcripts (to focus on content rather than “shifty appearance”), shortening interrogation sessions, presuming guilt and educating jurors about false confessions.

Curiously, they omitted the most obvious solution to the false confession problem, have the interrogating officers give the suspect a foot massage while he sips a green tea latte.

While nowhere in this lengthy quasi-academic post is the Reid technique mentioned, the answer boils down to eliminate all the methods that police find effective in getting a suspect to talk (excluding the time-proven rubber hose), and false confessions can be reduced. 

Of course, so would true confessions. So would all confessions. And that is the problem in the first place.  The point of interrogation is to get people to talk, not to get them to tell the truth. As anyone who has ever tried a case would expect, a commentary by Larry Barksdale to the post is far more real and enlightening than the post itself. You have to scroll down to the end to read it, and there’s no independent link to take you straight there.

Barksdale, with “forty years of law enforcement experience,” is an assistant forensics professor at the University of Nebraska, and his thoughts are well-written, clear and has the unmistakable smell of a cop’s perspective. While the main body of the post is tedious and a bit fantastical, Barksdale’s commentary is real and illuminating.  For example:

Assumption 4: Everyone has a price tag.

This is a button to be pushed by the interviewer that goes far beyond money alone. Good citizenship appeals, lessening of culpability, money, revenge, spitefulness, fear of exposure or harm to oneself or significant others, self-promotion, sense of guilt, and wanting to get the interrogation over with are some of the buttons that can be pushed to get information. The utility of button-pushing includes the not guilty as well as the guilty. The duty of the interviewer is to be persistent in pushing those buttons to get the maximum information from every source.

Assumption 5: There are rules to play by.

For example, waterboarding is not permitted by civil law enforcement agencies in the United States. Private and public interviewers are trained in the limits of the rules. These rules are not always clear however, and experienced law enforcement officers know that the rules change on a regular basis. In my 41 years as an active law enforcement officer, the required process for Miranda warnings has changed numerous times. At one time there was not a requirement to read Miranda warnings on misdemeanor arrest situations. Few law enforcement officers read Miranda on traffic citation cases if the offense, such as a speeding violation, did not have a penalty that included incarceration.

However, in 2012, on felony and misdemeanor arrests, when the person is in custody or there is a possible jail sentence, the rule is to read Miranda warnings. Twenty years ago, the requirement was to “read” Miranda when an investigation focused upon a person and that person was in custody. Today, the rule seems to be that Miranda only needs to be read if a person is in custody and only if they are not familiar with Miranda rights. Hence, if you are standing on a street corner “talking” and then let the person go, you do not need to read Miranda rights if you can testify you were “only gathering information and had no immediate plans to arrest the person.”

When I first started in law enforcement in the late 1960s, it was acceptable to put a pencil between a suspect’s fingers and squeeze the fingers to use pain to cause a person to talk. I even recall being told that if a female was resisting arrest or not being cooperative that squeezing and twisting her nipples would make her cooperative. Over the years, I have attended interview and interrogation schools in which several days were spent on developing “lies” that would convince a person that you had information about physical evidence or information from an accomplice or informant.  It is not easy to be a good liar. It takes training and practice for most people, because “good” people are raised to tell the truth.

In 2012, in the United States, civil police practices are such that inflicting physical pain or touching intimate body areas are not allowed and would be criminal behavior by the police. Blatant lies that can be construed as coercing a person are often suppressed in a confession.   A response to this issue is to say something such as “What would you say if I told you we had your fingerprints that matched, and your DNA is on the bathroom door?” An awareness of the rules, a compliance to the rules, and a willingness to test the boundaries of the rules are the mandate of contemporary law enforcement interviewers, in the quest to maximize the gathering of information.

I totally agree with the authors, Douglas L. Keene and Rita R. Handrich, that people confess to crimes when they did not commit the crime. I accept the reasons put forth as valid explanations of what leads to people confessing to crimes when they did not do the crime. I concur that withholding information that would tend to disprove the validity of a confession is a miscarriage of justice. Inflicting physical pain, deception, psychological abuse, and other acts that fall outside the legal definition as acceptable interview and interrogation behavior have no place in the behavior of the civil police. I wholeheartedly support review, supervision, and punitive personnel actions for law enforcement personnel who violate the rules.

However, the authors also seem to suggest that the primary culpability in cases of false confessions lies with the law enforcement component of the process. I do not agree with this. Outside of intentionally or grossly negligent violation of rules both statutory or administrative, the culpability lies also with the practicing attorneys and the courts.

Assumption 1: There are no absolutes. 

No one tells the truth because there is no such thing as the truth. The truth is only what is accepted in court as fact. Research in cognition and perception seem to bear this out as phenomena of the human condition. Law Enforcement officers are therefore in the information gathering business. It is their job to get as much information as possible on a given event. In any event, an interviewer gets only the first best story, or, as it is often facetiously called, the “first best lie.”

When I read Case Western Reserve’s law school dean, Lawrence Mitchell’s, op-ed in the New York Times (thanks all who sent me links, though I read the Times too, ya know), I quickly issued a typically snarky twit :

Case Western Law Dean Lawrence Mitchell in @NYTimes op-ed: Do these hotpants make my butt look fat? http://tinyurl.com/crdcwgd 

Taking   potshots at unnamed critics is fun.

The hysteria has masked some important realities and created an environment in which some of the brightest potential lawyers are, largely irrationally, forgoing the possibility of a rich, rewarding and, yes, profitable, career.

Translation: Getting people to spend $200,000 for a 50/50 shot at a legal job of any kind is getting harder every day.

The starting point is the job market. It’s bad. It’s bad in many industries. “Bad,” in law, means that most students will have trouble finding a first job, especially at law firms. But a little historical perspective will reveal that the law job market has been bad — very bad — before. To take the most recent low before this era, in 1998, 55 percent of law graduates started in law firms. In 2011, that number was 50 percent. A 9 percent decline from a previous low during the worst economic conditions in decades hardly seems catastrophic. And this statistic ignores the other jobs lawyers do.

If we define “law graduates starting in law firms” in the broadest way possible, by counting every single job any law graduate in the class of 2011 got at a law firm, 41 percent of law graduates whose employment outcomes were recorded (this data is missing for 4 percent of ABA law graduates in the 2011 class) got a job with a law firm.  If we define “starting in law firms” to mean “got jobs as lawyers with law firms,” which is surely how readers will interpret that phrase – that is, if we don’t count people who got jobs as secretaries, paralegals and clerks, i.e., jobs they could have gotten without acquiring a law degree first – that percentage drops to 34.7 percent.  If we limit the phrase to full-time lawyer jobs, the percentage drops to 32 percent. If we exclude new grads who listed themselves as members of “firms” consisting of one lawyer (themselves) that figure becomes 29.5 percent. Statistics  here.

I started law school in 2002 and graduated in 2005.  Prior to going to law school I had heard rumblings about how being an attorney was not as profitable as the schools made it out to be.  I was also warned by other attorneys that it was very stressful.  Unfortunately that information did not sink in and I bought the hype that [average-ranked law school] offered.  So I spent three good years of my life working on a degree that I believe should have only taken two.

Then reality really hit when I entered the job market.  It was not good.  You could find jobs but for $40,000 to $50,000.  At first I thought that it was me, that I had not done the right things, ie kiss up to the right people, done unpaid internships, etc.  So I decided to hang up my own shingle.  I opened my own office, and tried to make a go of it.  It has been an incredibly difficult five years.  For many of those years I would blame myself for not doing better; I began to believe that there was huge mistake that I was making or I had made that had alienated clients, or that I wasn’t advertising properly, or any number of things that could be attributed to an office that produced income, but not that much.  I worked long hours by myself trying to satisfy clients that could not be satisfied.  I panicked at little mistakes, and thought the worst case scenarios for every misstep.  It was a miserable existence and it put me in a depressive state with bouts of anxiety that were difficult to control.

For us old guys, like me and Mitchell, we’re debating the virtues of a profession.  For the writer of this email to Campos, it’s his life.  Mitchell waxes vague. The writer lies awake in his bed at night wondering how he will feed his children in the morning.  I’m damn angry about this.

It’s not that making the decision to go to law school, to become a lawyer, has no virtue. It is, or at least used to be and can be once again, a worthwhile and important profession.  It’s that the marketeering, the law porn, reflected in Mitchell’s empty prose is designed to do one thing, and one thing only: obscure the downside and deceive the unduly optimistic.

As much as I may rail against deceptive legal marketers for pushing their naive, ignorant or scummy lawyer-clients ahead in the race to the bottom, their smiling faces have nothing on this law dean.  His words will comfort parents who remember lawyers as being prominent members of the community, with fine houses and manicured lawns, who want nothing more for their children than to be secure in a comfortable life, guaranteed by generations of vested Solomons. 

And their children, unclear of where their life should be and seeking refuge from a troubled world, assume that following the crowd will assure them that they will get that BMW and corner office.  All those smiling faces on law school websites can’t be wrong.

Yet the email to Campos reflects the brutal reality.  The writer concedes the depression his choice brought him, and later in the email, admits to thoughts of doing harm to himself.  Would it bother you greatly, Dean Mitchell, is you found out some kid read your op-ed, became a lawyer, and took his life?  Or would that just be collateral damage to the more important cause of filling your law schools empty seats?

It’s time to make it plain. Cut the crap. These are real people’s lives you’re screwing with. Law deans don’t get a free pass on bullshit any more than anyone else.

Among the many fascinating things that appear in the Simple Justice mailbag every day, aside from the many requests for pro bono representation of your “worst travesty of justice ever” because the only evidence against you is seven eyewitnesses, four of which come from priests, one of whom baptized you, high-definition video taken from three angles, and your signed and written confession taken in the presence of counsel (that thief who stole all your money), are solicitations to check out the latest, greatest  start-up concept ever. How cool is that?

One arrived yesterday from a company called Jailbase. Yes, I misread it the first time too, but in a fit of twitchy fingers, opened it and found this:

Hello, we are developing a mugshot mobile app that will allow you to identify people against county jail mugshots. We thought your users would be interested.

While researching the technology, which has been around for multiple decades, JailBase noted that facial recognition technology has previously been primarily used by government and large corporations. Given a photo, it allows the user to search for similar faces in other photos. Recent advancements in the technology has led it to be more accurate and affordable, allowing JailBase to bring this technology to the public in the form of a mobile app to match people’s photos with police mug shots.

JailBase runs a website that collects 1000’s of mugshots a day from county jails. These mug shots are considered public record. Currently, users of the website can search by name for people they know that might have been arrested, then sign up for arrest notifications. JailBase will be adding the ability to search for arrested individuals by face. The public will be able to take a photo of someone using their mobile phone and instantly see possible mug shot matches.

With the development of a working prototype to give people the ability to use a photo of a person to find out if they have an arrest record, JailBase has launched a crowd funding campaign to finance the completion of the project, which they hope to achieve by March 2013. People who give to the campaign will have the opportunity to exchange their donation for rewards, including a full version of the mobile app once it is released.

In juxtaposition to the many instances of police (usually at the behest of school administrators) taking infantile pranks and turning them into very real prosecutions of children, four cops in North Providence, Rhode Island,  took the law into their own hands and did what one would imagine Andy Griffith would have done 50 years ago.

Four police officers in Rhode Island are being investigated for making five boys do pushups on the side of a street as punishment for damaging a mailbox.

Acting North Providence Police Chief Paul Martellini said a woman called police Friday morning to report her mailbox was damaged. Officers soon found a bright yellow sports car that matched the description, he said. Several teenagers were inside.

Mayor Charles Lombardi told WPRO-AM on Monday the officers thought the best way to reprimand the teens was to have them do pushups.

So they made the boys do a dozen pushups, gave them a stern warning to never vandalize a mailbox again, and sent them on their way.  No cuffs. No tasers. No criminal records. And for this, the community built them a statue, right?  Not exactly.

Martellini said he has ordered an internal investigation and would not immediately comment on whether the officers’ actions were appropriate.

Clearly, the cops acted as judge, jury and executioner, conceptually a position that most are disinclined to relegate to the police.  As Chief Martellini ponders whether this was “professional” behavior, he asks the wrong question.  It wasn’t.  Professional behavior would have compelled the officers to arrest the youths and turn the matter over to prosecutors, ultimately resulting in a determination of guilt or innocence, and if the former, a life saddled with a criminal conviction. Now that would have been the way a “professional” cop behaves.

Instead, they did what a cop would have done a few generations ago, when the idea of hanging a criminal record on every stupid kid would have been considered absurd and outrageous by pretty much everyone, cops included. 

Given how police are inclined to explain away as justified the needless deaths of innocents without blinking an eye, why is Chief Martellini not reacting with, “what the hell is wrong with you people”?  This could explain:

Martellini is acting chief because Chief John Whiting was recently convicted of stealing money from a stripper’s pocketbook after a car chase last year.

Once a department is perceived as dirty, even doing the right thing presents questions that aren’t so easily swept under the rug.  But this?

The problem is that these four cops did what one might hope they would do when dealing with dumb kids; the only additional thought is whether they had to pay to repair the damaged mailbox. They should. And maybe buy the person who suffered the damage a dozen donuts for the trouble they made. Case closed.

But the inclination of years past to trust police is long gone.  Praise these officers for taking the law into their own hands and you’ve taken a giant step onto the slippery slope of police misconduct.  Sure, this time the punishment, a dozen pushups, seems right on the money, but what about next time? A different set of cops, a different place, and it’s a taser and a few kicks in the head.  Suddenly, their notion of street justice doesn’t give us a warm and fuzzy Mayberry feeling.

On the one hand, putting the handling of punishment in the discretionary hands of cops doesn’t strike many as a good idea. There have been far, far too many times when police have demonstrated that they so utterly lack the judgment and discretion to control vicious urges, violent tempers and the knee-jerk resort to the weapons of their trade, to ever willingly go down the road to Mayberry.  Especially when it comes to children.

Yet, in this instance, what happened was clearly the best outcome for all involved.  The alternative of prosecution and potential criminal record would have ruined lives over a stupid, juvenile act. The boys needed to learn they can’t destroy things, that vandalism isn’t fun or cool.  But once the lesson was learned, they similarly need the chance to grow up and lead productive lives, unencumbered by the yoke of the criminal justice system. 

Let’s come to grips with reality here: no child is better off for having become embroiled in the system. Some may have engaged in conduct sufficiently serious that it can’t be avoided, but they are no better for it. When the offense is more prank than crime, and can be effectively dealt with by a good metaphoric spanking, we are all better off.

But because we are constrained to remember history so we don’t repeat it, we’re just not inclined to trust the police to handling things well either.  What a mess.  What a shame that there is no going back to Mayberry because most police aren’t Andy Griffith.  And if Andy Griffith came back again, he would likely find himself sitting at a desk, gun and shield surrendered, and under investigation. 

H/T Steve Magas, the Bike Lawyer

Like weeds, they popped up around the blawgosphere yesterday.  Blawgers (and bloggers) who want their fans to vote for them in the ABA Journal’s annual beauty pageant. Trying so very hard not to appear desperate and pathetic in their quest for validation, they humblebrag, they gently ask, they call to action, they ask for votes so that they can prove their worth.

The win has been worth paying for votes, or as was the case when a blog from New York Law School was in the mix, marshalling all tuition payers to vote up their baby.  Lawprofs have laid bare their souls for the honor of being able to claim they are the sexiest academic in the blawgosphere, while n00bs have grasped their eminence to pontificate about how they make their magic happen.

In some jesting on twitter by  Mark Bennett yesterday, the Trial Warrior, Antonin Pribetic, who masquerades as a Canadian blawger named Edith, offered a  simple truth in moment of uncommon clarity (not uncommon for Nino, but for twitter):

@MarkWBennett Frankly, SJ and DP will both likely lose, for the simple fact that you and @ScottGreenfield are not nice.

Every twelve seconds, someone on the internet argues that the Constitution means exactly what it says, and that us lawyers muddle it up for the sake of protecting our turf and collecting ill-gotten gain off the backs of hard-working citizens.  While we often can tell who these people are from their tin foil hats , there are some surprising voices joining the choir.

Orin Kerr at  Volokh Conspiracy offered these words:

Our Constitution is not alone the working plan of a great Federation of States under representative government. There is embedded in it also the vital principles of the American system of liberty. That system is based upon certain inalienable freedoms and protections which not even the government may infringe and which we call the Bill of Rights. It does not require a lawyer to interpret those provisions.

—Former President Herbert Hoover, 1935.

Joining in,  Ilya Somin offers;

Co-blogger Orin Kerr quotes Herbert Hoover’s statement that you don’t have to be a lawyer to understand the Constitution. Interestingly, the Supreme Court agrees. As Justice Owen Roberts put it in a unanimous 1931 decision, “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” This conclusion was reaffirmed by the Court in District of Columbia v. Heller (2008).

The momentum builds, but as Ilya explains:

Many parts of the Constitution really are readily accessible to laypeople. You don’t have to be an expert to understand that the Constitution establishes a system of separation of powers rather than a unitary parliamentary system, that it protects freedom of political speech, that it forbids the establishment of an official religion, that it requires the government to compensate property owners when it condemns their land, and so forth. Even when dealing with relatively simple parts of the Constitution, it may be difficult for nonspecialists to go through decades of accumulated legal precedent interpreting these provisions. But the Constitution is not just what the judges say it is, and even the latter is often constrained by the text, especially when the text is relatively clear.

That’s a rather wild assertion. with some inexplicable internal contradictions.  After all, why would “relatively simple parts” of the Constitution require “decades of accumulated legal precedent interpreting” them?  Either they’re simple or not, and if the former, then no interpretation is needed. Or if it is, then it’s not so simple. You can’t have it both ways.

Let’s test this thesis, using one of the examples Ilya offers as “readily accessible to laypeople,” the Establishment Clause of the First Amendment. It says, in pertinent part:

Congress shall make no law respecting an establishment of religion…

Ten words, no waiting. How hard could that be to understand?  The first five words seem about as clear as they could be, that Congress shall make no law.  We certainly know what Congress is, that domed place in Washington where 535 people spend their time trying to figure out how to make each other look foolish when they aren’t asking for campaign contributions.  Those people “shall,” a mandatory word, leaving no wiggle room, “make no law.”

Obviously, this doesn’t stop a teacher from requiring students to offer a prayer to Buddha before the start of a hard day of education, or a fire department from putting a creche in front of its combination garage/bar, or a judge from sentencing a drunkard to give Catholic confession twice a day for ten years.  Even if we blindly incorporate this clause under the Fourteenth Amendment, none of these actors can be construed under any stretch of language as “Congress,” or lawmakers. Easy, squeezy.

Then comes the second five words, “respecting an establishment of religion.”  Not nearly as clear as the first five, but not all that hard to understand. If we all agree that “respecting” means “with regard to,” the final four becomes fairly clear, right?  They can’t establish, or make official, religion.

Does this mean one religion? Does this mean they can’t make a law requiring us to believe in, say, one of the top three religions, and rid us of all the squabbling about a bunch of lesser religions? Does it mean they can’t pass a law requiring us to believe in something, putting an end to those commie atheists?

But establishing an official religion is a long cry from passing laws that encourage religion, or facilitate religious good works, or enabling religion to play a critical role in our lives.  After all, Kentucky’s homeland security law makes it a crime not to acknowledge that our security depends on the will of Almighty God. And you can’t walk into the Alabama’s Supreme Court without noticing that  Roy Moore, who refused to remove the 10 Commandments from the courtroom wall, is back on the bench.

And we still have those inexplicable anomalies, the “under God” thrown into the Pledge of Allegiance to differentiate us from the Ruskies, or “in God we trust” in the dollar bill. And they actually came at the hands of Congress.  Figure that out.

There aren’t many Americans, lawyers included, who believe the Constitution should be anywhere near as complicated to understand as it is, as our Supremes have made it.  While lawyers may have a leg up in tolerance for judicial tinkering, not because we like it but because we’ve grown inured to it, one would have to be awfully darn bold to think you can walk into court, point to the text, and walk out, secure in the knowledge that your job is done.  And that’s just with a cocktail napkin assessment of the first ten words of the First Amendment, which (as should be obvious) reflects nothing remotely resembling the state of the Establishment Clause in our fine nation.

And there isn’t anyone foolish enough, myself included, to play this game with the Fourth Amendment.

It strikes me that the adoration of the plain language of the Constitution is in direct proportion to whose ox is being gored.  It’s not that the plain words are too deep, complex and sophisticated for mere mortals, though experience informs us that simple is only simple until it’s not.  Arguments like Ilya’s, and the Open Law crowd of academics who believe that you give nonlawyers access to the whole of the law and they will have no problem become overnight legal scholars, feed into a libertarian-ish, populist trend that invites facile, self-serving “understanding” of the law that is used to justify their reaction to whatever beef they have with government.

On the other hand, if you leave the Constitution up to the group of nine to tinker with long enough, who decide to empower themselves with the authority to ignore the words entirely to reach whatever result they prefer, you end up with the Constitution we have today.  As a lawyer who makes arguments based on the Constitution, as interpreted by the Supremes, it’s not entirely clear that leaving it to judges to “interpret” the Constitution works any better than leaving it to the tin foil hat crowd.  Neither has done much for my ox.

Because “there’s a dearth of smart, non-sensationalistic crime coverage on the Internet these day,” Slate’s brand new crime blogger, Justin Peters, explains.  Given that a follow up post is about the Cannibal Cop, the explanation makes complete sense.  Serious stuff with none of the fluff.

Of course, it hurts to learn that I’m part of the dearth.  I hate to be part of the dearth. Dearths are bad.  It could be that I’m stupid and sensationalistic, but I’m more inclined to think that I, as well as the other criminal defense lawyers who write about such sensationalistic stuff as crime, am just not important enough to make it onto a crime guy like Justin’s radar. I’m am a gnat to his elephant.

Who, you ask? Justin Peters.  He explains his qualifications to fill the huge internet crime blog void:

What are my qualifications? Well, I was burglarized last year, which was unsettling. (As it turns out, I have nothing of value to steal, which was even more unsettling.) I was a background extra in the movie Curly Sue, so I’ve got unparalleled insight into crimes involving homeless grifters with hearts of gold and their adorably sassy adopted daughters. I’ve read everything ever written by Elmore Leonard, James Ellroy, and Franklin W. Dixon. And, of course, every Christmas I go down to the homeless shelter and distribute cakes laced with arsenic.

In short, I’m just the sort of preening, narcisisstic [sic] sociopath you’d want writing a blog like this.

Hah! What a card. Except after I stop slapping my knee, it’s kinda hard not to notice that Justin has no qualifications to write about crime at all.  Whether he’s actually very funny, as if that was important, is a matter of personal choice. I thought it was a bit of overkill, but that’s just me, and I am, after all, part of the dearth.



From his actual Slate bio, here the picture of himself he uses professionally, where he describes himself as “editor at the Columbia Journalism Review.” 

As easy as it may be to ridicule Justin Peters, or anyone named Justin for that matter, the fact is that he’s going to be the honcho of Slate’s crime blog, which means that a whole lot of people, even more than read here and Bennett’s blog combined, are going to be reading what he, and his minions (I assume he has minions) write.  Which raises the question: will they be any better off for having done so?

My fear is that they won’t. My fear is that this will be a popular blog, much like Huffington Post, that can be used for good or evil, to illuminate or make readers lose brain cells, and that it’s heading toward the latter.  In fact, I can’t imagine that Justin has the capacity to distinguish between illuminating and making people stupider because, well, he hasn’t got a clue what he’s doing.

Every once in a while, the question is posed whether the internet makes people smarter or stupider.  The answer, as usual, is it depends.  After all,  Radley Balko writes at Huffington Post, and he illuminates most of the time.* But then, Justin Peters is writing at Slate, and from all indicia, his light is dim.  Actually, reading the two substantive posts written since his introduction, it’s seems pretty clear that Justin’s style would be better suited to deep and thoughtful posts about, say, Lindsay Lohan playing Elizabeth Taylor, God rest her soul.

Consider, for example, his conclusion as to whether Ritalin reduces crime or helps criminals get away with it.

But it’s also entirely plausible that impulse control makes for better criminals. A jittery, hyperactive thief seems more likely to get caught or make a stupid mistake than one who has his nerves under control. As a user of such medication myself, I can say with confidence that the nefarious plots I conceive while on my meds are much more focused and plausible than the stuff I come up with when unmedicated. If your criminality involves long-term planning—if, for example, you are involved in an elaborate heist that requires you to memorize the blueprints to a museum—then a stimulant might be just the thing you need to succeed.

I can’t tell you how many clients have regretted not having downed a few tabs of Ritalin before memorizing blueprints for that museum heist.

Clearly, blogs written by lawyers lack the entertainment value that a major player and intellectual giant on the internet like Slate would demand.  After all, they’re written by lawyers, drones of the legal sort, who couldn’t possibly have anything sufficiently interesting or titillating for the likes of Slate readers. I understand this, and certainly can’t blame Slate for demanding a saucier approach.  But at the same time, as one of those drone-like lawyers, for whom the effort to illuminate matters and who believes the foremost rule of blawging is to make no one stupider for having read what is written, Justin’s posts are not likely to help.

People are already pretty darned ignorant of criminal law.  Now that Justin has filled the gap created by that sad, pathetic dearth of good criminal law blogs, it appears that they may well be a whole lot stupider.  Thank you, Justin. Thanks, Ms. Slate.  And really, thank you internet.  The dearth is now officially gone.

* Just leaving myself a little wiggle room here.

Thinking            1.3 hours

Somehow, I missed a post by Stewart Baker at the  Volokh Conspiracy explaining a psychological infirmity that afflicts those whose “real” issue while awaiting their turn for a full body scan by the TSA of which I was wholly unaware.  Not until I saw this  follow-up poll did I read his post. I was floored.

Bear in mind that Baker is a Steptoe & Johnson partner, having completed a stint as first Assistant Secretary for Policy at the Department of Homeland Security. He’s a passionate believer.

I’ve spent mine puzzling over the roots of TSA-hatred.

There’s no doubt that it’s virulent. As a privacy skeptic and national security conservative, I’m used to hostile comments.  But it’s only when I defend TSA that the comments go beyond hostile to visceral and occasionally even spittle-flecked.

Why is that? Notwithstanding the venom of the TSA-haters, polls show that most Americans support TSA, including the decision to use whole body scanners. But for a very vocal minority opposing the agency isn’t political. It’s personal.

I can’t explain the women who hate TSA with a passion, though I’m not sure how many there are.  Anti-TSA sites and comments have a distinct whiff of testosterone.

While I, unlike Stewart, don’t go sniffing around for testosterone, and while I can easily explain why women aren’t enthralled about having strangers rub their labia or lift their blouse in airports, the balance of Stewart’s thoughts about airport security took me by complete surprise.

After a lengthy quote from Michael Chertoff, Stewart’s former boss, describing his ritual preparations to go through the ordeal with ritualistic precision, he goes on:

It may not make sense. But I’m willing to bet that a lot of the men reading this have similarly choreographed plans for the security line.

I know I do. And if I’m honest with myself, the rituals of the screening line aren’t really about speed.  They’re about performance.  I feel a kind of competitive pressure to keep the line moving. I’m not happy to see more than about six inches of distance between my luggage and the bags in front of me on the belt. Every delay in pulling out my laptop or my liquids, every last minute bit of change I have to throw haphazard into the bin, every stutterstep as I realize it’s a whole-body scanner, not a metal detector, so belt and watch have to come off too –- all detracts from the performance.

Every once in a while, though, everything goes right, and I feel great. I’m Michael Chertoff, baby, all smooth competence, no wasted motions, no hesitation, no gaps on the conveyor belt.

Don’t you think to yourself, “I’m Michael Chertoff, baby”?  Me neither.  But why?  What is it about this “smooth competence” that gets Stewart’s “Michael Chertoff” juices flowing?

OK, that’s a little embarrassing to admit.  But it gets worse when I ask myself why I care.  If you’re the kind of guy who can’t throw away a piece of paper without wadding it up and arcing it into a basket across the room, you already know.

In part we do it to keep our place in the hierarchy of guys.  But in the end, what we’re really hoping for is an Alice Munro moment — that our easy concentration and economical movements will set up in someone “a procession of sparks and chills,” followed a few pages later by, well, what we deserve for all that demonstrated competence.

Wait for it….

And that means that TSA has an Alice Munro problem.

This, dear readers, is where it gets twisted. An “Alice Munro problem” comes from this quote, which Stewart places atop his post.

“I … watch him working at the stove.  His easy concentration, economical movements, setting up in me a procession of sparks and chills.”

– Alice Munro, Dear Life

What this means is that Stewart perceives himself, as he smoothly navigates the airport security line by wearing loafers and putting his keys and phone in the pocket of his blazer, as becoming sexually irresistible to women, causing them “sparks and chills.”

Perhaps I’m a quart or two low on testosterone, but I have never harbored a fantasy that my smooth negotiation of the airport security line has caused any woman to have “sparks and chills.”  In fact, not a single sexual thought has passed through my head as I pulled my laptop out and placed it gracefully in a bin. Never.

Had someone suggested to me that other men indulged in this sexual fantasy as they placed their shoes on the belt, I would have told him he was a lunatic and needed intensive therapy.  I would have been wrong.  Apparently, not only is there such a person, but he held high office in a department of the government that carries great sway with the imposition of these mandates.

Like the commenters to Stewart’s post, I am flummoxed by his revelation.  No, I do not share his sexual titillation at being the coolest guy on the security line.  No, there is nothing whatsoever about being a player in this TSA theater that makes my manliness come out, making me believe that women who watch me swoon with desire.

That Stewart needs therapy is not my issue.  I’m sure the Steptoe health plan can cover it, no matter how many years it will take to get him past his delusion.  But that Stewart had a voice in the way our government imposes its rules scares the hell out of me.  Do others behind these dictates similarly share a sexual thrill in the TSA security line?  Do they dismiss the “spittle-flecked” very vocal minority because of the manly thrill they get as they prove their smoothness? 

Had Stewart not made this very embarrassing admission, I would have never known, never believed, that some bizarre macho titillation was involved in the mastering of the full body scanner. I now know different, and it scares me.  Who are these people in charge of our lives, and have they passed any sort of psychological screening for something remotely resembling normalcy? 

No, Stewart, I do not share your testosterone-fueled feelings.  Not at all.  But I am of the view that one of us isn’t quite right, and this time, I don’t think it’s me.

Update: This just in, TSA footage, using their newest secret weapon of mind-imaging, of Stewart Baker on a security line.

Californians came to their senses when they reformed the insanity of there Three Strikes Law that imprisoned people for life for offenses that were utterly trivial because they followed two prior felony convictions.  It seemed to make so much sense in the beginning to people who were all too happy to rid society of those “parasites,” until reality sunk in.

From the New York Times :

As it turned out, three strikes created a cruel, Kafkaesque criminal justice system that lost all sense of proportion, doling out life sentences disproportionately to black defendants. Under the statute, the third offense that could result in a life sentence could be any number of low-level felony convictions, like stealing a jack from the back of a tow truck, shoplifting a pair of work gloves from a department store, pilfering small change from a parked car or passing a bad check.

For some crazy reason, such unduly simplistic ideas like three strikes never seems to take into account how things work out on its fringes, which often requires people to think a bit harder than mere convenient self-interest.  Then again, there was also the selling point of enlightened self-interest:

In addition to being unfairly punitive, the law drove up prison costs.

The reformation was intended to end the Kafkaesque aspect of ridiculously disproportionate sentencing of life for these minor felonies by making the third strike apply only to “serious” felonies:

The revised law preserves the three-strikes concept, but it imposes a life sentence only when the third felony offense is serious or violent, as defined in state law. It also authorizes the courts to resentence thousands of people who were sent away for low-level third offenses and who present no danger to the public.

On its surface, it seems to address the problem, or at least the most flagrant manifestations of the problem, while retaining the shiny appeal of simplistic mandatory punishment.  For those inclined to extrapolate from limited facts, it isn’t hard to foresee the next level of failure, when a well-placed punch or a home defended turns into a conviction for a violent felony. But let’s rejoice over reform and leave the thinking until the next few thousand lifers’ stories are told.

But an outgrowth of some deeper consideration of who the past third strike offenders were turned up a curious issue.

The resentencing process is shaping up as a kind of referendum on the state’s barbaric treatment of mentally ill defendants, who make up a substantial number of those with life sentences under the three-strikes rule. It is likely that many were too mentally impaired to assist their lawyers at the time of trial.

Mentally ill inmates are nearly always jailed for behaviors related to their illness. Nationally, they account for about one-sixth of the prison population. The ratio appears to be higher among three-strike lifers in California.

The inability to think rationally, to perceived the world around you in terms of reality, isn’t limited to California voters. Indeed, anyone who defends the accused has either had a close relationship with a mentally ill person or is thick as a brick.  Granted, financial motivations often drive people to commit crime, but there are a great many offenses that bring no money and are just plain wrongful conduct. Why would anyone engage in this conduct?  More often than we want to recognize, the individuals suffer from an inability to reason, to comprehend, to see, to think, in a way that would have allowed them to control their behavior and avoid the commission of a crime. They’re mentally ill.

Have you ever sat down to talk with a client, to ask what happened and, maybe in the course of hearing a course of conduct that just made no sense, why?  Did you pick up the affectation, the grandiose self-image or the inexplicably obsessive aspect that just couldn’t be explained?  There is no shortage of signs of mental illness, though nobody taught us in law school what to look for.  Worse still, there is nothing in our training that allows us to help.

Asked about the relationship of mental illness and three-strikes prosecutions, Michael Romano, director of the Stanford project, responded, “In my experience, every person who has been sentenced to life in prison for a nonserious, nonviolent crime like petty theft suffers from some kind of mental illness or impairment — from organic brain disorders, to schizophrenia, to mental retardation, to severe P.T.S.D.,” or post-traumatic stress disorder.

Nearly all had been abused as children, he pointed out. All had been homeless for extended periods, and many were illiterate. None had graduated from high school.

In other words, these were discarded people who could be made to bear the brunt of this brutal law without risk of public backlash.

The mindset of those who support simplistic sentencing notions like three strikes or mandatory minimums is one of personal responsibility. We all make choices in our lives, and if we chose to commit crimes, we have no one to blame for the consequences but ourselves.  It’s a neat and tidy philosophy, and allows us to shrug off the harshness of its results as the other guy’s choice, not ours. We certainly didn’t make him commit a crime. He did it to himself.  Easy.

Except that the philosophy doesn’t fit well with the mentally ill.  They don’t sit down and think about it, ponder the cost/benefit of engaging in crime.  They don’t think of the consequences, an assumption invariably argued and yet rarely known, no less considered, by those who end up convicted.  The myth of criminals knowing the law better than anyone else has always been hogwash. They didn’t know much to begin with, and experience in court and prison didn’t make them any smarter the second time around. Or the third.

Nor do they meet the legal definition of insanity such that their mental illness will save them from prison by putting them in an institution. Few outside the profession realize how rare and difficult it is to use this defense successfully.  The reality is that we see diminished capacity all the time, but careers go by without ever defending someone who is not guilty by reason of insanity. Mental illness covers a huge spectrum, with plenty of room for most defendants in the system.

But to expect the mentally ill to comport themselves the way people whose neuroses aren’t directed toward criminal conduct is just, well, nuts. It’s like passing a law that requires the blind to see or the deaf to hear. You can pass it, but it ain’t happening. 

While recognition of the existence of mental illness has come a long way, and the attached stigma is very slowly diminishing, the criminal justice system is lightyears behind in figuring out a way to accommodate it and address it.  Our only tool being a huge hammer to be dropped on the head of the convicted, it’s not going to do much to help. 

And yet, even with this reformed three strikes law, judges will still be constrained to bring their big hammer down on the heads of those defendants who are mentally ill on their third strike.  It’s just nuts.