The Turkeys Are Still Winning

It won't be news to readers of this blawg that once a trial is over, questions of innocence (with rare exceptions) become legal irrelevances.

Reviewing courts, whether on direct appeal or collateral review are concerned with rules and procedures. They talk, some, about how strong the evidence was of guilt. But factual innocence is mostly beyond their proper reach. Indeed, most of the human consequence, of the real world result of decisions rendered by trial courts (and this is as true of civil as of criminal cases) is of no formal interest to appellate judges and justices.

I chose my words with some care in that paragraph. The adjectives in "legal irrelevances," "proper reach," and "formal interest" matter. Innocence and consequence don't formally count because that's not what reviewing courts review. They're not, basically (yes, there are exceptions), in the business of second guessing verdicts. They're in the business of making sure that the verdicts were reached in accord with the rules and statutes and constitutional provisions that control legal process and outcome.

For good or ill, trials are about what happened. Post-trial work is about how the trial was conducted - not about whether it came to the right result.

Of course, it's rarely quite that simple. As I've said repeatedly, the myth of judge or justice as robotic umpire calling balls and strikes is just that - a myth. But myth, albeit fictional, has power. Reality infects, but the claim must be that it does not.

Here's now-Justice Sotomayor explaining to the Judiciary Committee how she's deeply concerned about the real world consequences of her decisions and pays enormous attention to such things because they're vital. But, she's careful to add, those things and her attention to them have nothing whatever to do with the decisions she makes.

Throughout my seventeen years on the bench, I have witnessed the human consequences of my decisions. Those decisions have been made not to serve the interests of any one litigant, but always to serve the larger interest of impartial justice.
In the past month, many Senators have asked me about my judicial philosophy. It is simple: fidelity to the law. The task of a judge is not to make the law – it is to apply the law. And it is clear, I believe, that my record in two courts reflects my rigorous commitment to interpreting the Constitution according to its terms; interpreting statutes according to their terms and Congress’s intent; and hewing faithfully to precedents established by the Supreme Court and my Circuit Court. In each case I have heard, I have applied the law to the facts at hand.
The process of judging is enhanced when the arguments and concerns of the parties to the litigation are understood and acknowledged. That is why I generally structure my opinions by setting out what the law requires and then by explaining why a contrary position, sympathetic or not, is accepted or rejected. That is how I seek to strengthen both the rule of law and faith in the impartiality of our justice system. My personal and professional experiences help me listen and understand, with the law always commanding the result in every case.

Some justices (and judges) advert to the reality from time to time. There was, for instance, DeShaney v. Winnebago County Department of Social Services. Here's the first sentence of Chief Justice Rehnquist's opinion.

Petitioner is a boy who was beaten and permanently injured by his father, with whom he lived. Respondents are social workers and other local officials who received complaints that petitioner was being abused by his father and had reason to believe that this was the case, but nonetheless did not act to remove petitioner from his father's custody.

The facts, Rehnquist went on to say, "are undeniably tragic." But you know, them's the breaks. The law, he said for a majority of the court, provides no comfort. It's that Anatole France line from Le Lys Rouge.
The law, in its majestic equality, forbids the rich as well as the poor, to sleep under bridges, to beg in the streets and to steal bread.
Brennan's dissent is eloquent, bit we remember DeShaney for Justice Blackmun's words:

Poor Joshua!

In fact, we recall them wrong. We remember them as the first words of his dissent; they are not. They are, rather, the first words of the last paragraph. The whole dissent (it's short) is worth reading.

Today, the Court purports to be the dispassionate oracle of the law, unmoved by "natural sympathy." Ante, at 202. But, in this pretense, the Court itself retreats into a sterile formalism which prevents it from recognizing either the facts of the case before it or the legal norms that should apply to those facts. As JUSTICE BRENNAN demonstrates, the facts here involve not mere passivity, but active state intervention in the life of Joshua DeShaney — intervention that triggered a fundamental duty to aid the boy once the State learned of the severe danger to which he was exposed.
The Court fails to recognize this duty because it attempts to draw a sharp and rigid line between action and inaction. But such formalistic reasoning has no place in the interpretation of the broad and stirring Clauses of the Fourteenth Amendment. Indeed, I submit that these Clauses were designed, at least in part, to undo the formalistic legal reasoning that infected antebellum jurisprudence, which the late Professor Robert Cover analyzed so effectively in his significant work entitled Justice Accused (1975).
Like the antebellum judges who denied relief to fugitive slaves, see id., at 119-121, the Court today claims that its decision, however harsh, is compelled by existing legal doctrine. On the contrary, the question presented by this case is an open one, and our Fourteenth Amendment precedents may be read more broadly or narrowly depending upon how one chooses to read them. Faced with the choice, I would adopt a "sympathetic" reading, one which comports with dictates of fundamental justice and recognizes that compassion need not be exiled from the province of judging. Cf. A. Stone, Law, Psychiatry, and Morality 262 (1984) ("We will make mistakes if we go forward, but doing nothing can be the worst mistake. What is required of us is moral ambition. Until our composite sketch becomes a true portrait of humanity we must live with our uncertainty; we will grope, we will struggle, and our compassion may be our only guide and comfort").
Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing except, as the Court revealingly observes, ante, at 193, "dutifully recorded these incidents in [their] files." It is a sad commentary upon American life, and constitutional principles — so full of late of patriotic fervor and proud proclamations about "liberty and justice for all" — that this child, Joshua DeShaney, now is assigned to live out the remainder of his life profoundly retarded. Joshua and his mother, as petitioners here, deserve — but now are denied by this Court — the opportunity to have the facts of their case considered in the light of the constitutional protection that 42 U. S. C. § 1983 is meant to provide.

It happens, too, during oral argument - perhaps more often. Justice Stevens provided the moment last week during argument in Magwood v. Patterson when he tried to ground the discussion of whether a claim in a capital case should be heard.

Let me just ask, is this the cases in which the claim is he's ineligible for the death penalty?

No one other than he seemed to find the question even remotely relevant.

Yesterday, as Doug Berman posted (citing Josh Gerstein at Politico) it was Justice Kennedy. The case, Dillon v. United States, involves application of the federal Sentencing Guidelines to a person being resentenced. Kennedy took the opportunity to ask Leondra Kruger, an attorney with the office of the Solicitor General, about another matter. Here's the exchange, taken from the transcript.

JUSTICE KENNEDY: The Petitioner's brief opens with a statement about his rehabilitation. We don't know if that has been contested. You don't respond to it. But let's assume that's all true. He established schools and he helped young people and so forth.
Does the Justice Department ever make recommendations that prisoners like this have their sentence commuted?

MS. KRUGER: I am not aware of the answer to that, Justice Kennedy. It's certainly true that evidence of that type of rehabilitation factored into the government's recommendation in this case that Petitioner -

JUSTICE KENNEDY: And isn't the population of prisoners in the Federal prisons about 185,000 now?

MS. KRUGER: I think -

JUSTICE KENNEDY: I think it is. And how many commutations last year? None. How many commutations the year before? Five.
Does this show that something is not working in the system? 185,000 prisoners? I think that is the number.

MS. KRUGER: I -- I'm not prepared to speak to that question today, Justice Kennedy.

Kennedy's made the point before. Gerstein gives examples.

In a 2003 speech to the American Bar Association, Kennedy said:

The pardon process, of late, seems to have been drained of its moral force. Pardons have become infrequent. A people confident in its laws and institutions should not be ashamed of mercy. The greatest of poets reminds us that mercy is "mightiest in the mightiest. It becomes the throned monarch better than his crown."

The next year, Kennedy wrote in a dissenting opinion: "Among its benign if too-often ignored objects, the clemency power can correct injustices that the ordinary criminal process seems unable or unwilling to consider."

Back in November, I wrote about how, after ten months in office, the only pardon Obama had managed was for a Thanksgiving turkey. I wrote then:

The power to pardon, to grant clemency, is the power of mercy. It can be used for error correction, certainly, but at it's most potent it is something more. An act of grace from the sovereign. Not earned or deserved because one cannot earn or deserve grace. It descends.

Used to be that Presidents (governors, too, but that's a different post) regularly granted pardons, clemency, commutations. No longer. And none has been as chary at granting as Obama, the man of hope and change and empathy.

The scoreboard remains now as it was at the end of November:

Turkeys 1 . . . Humans 0.

We've got health care now, or a version of it.

Isn't it time?