Saturday, June 27, 2015

It depends on what the meaning of the word "is" is

For the last couple of days, I've been attending the annual conference of Reform Sex Offender Laws. RSOL brings together lawyers, scholars, activists, sex offenders and, especially, the unrecognized victims of the crimes of sex offenders, their families, to teach and learn and talk about how to do better. 

RSOL isn't trying to get sex offenses made legal, doesn't condone sex with children. It's not saying rapists shouldn't be punished or child pornography should be freely available.  It wants to reform, not abolish.  But it knows that much of what the media tells us about those who commit sex offenses is wrong.  

And that the boogeyman we're told to fear, really, the hundreds of thousands of them, are no more real than Jason.

It's not that there aren't folks who do, who have done, monstrous things.  It's not that there aren't some dangerous people out there. It's that people who've done monstrous things aren't monsters, they're people.  And not everyone who's done something we abhor is actually dangerous.

RSOL envisions effective, fact-based sexual offense laws and policies which promote public safety, safeguard civil liberties, honor human dignity, and offer holistic prevention, healing, and restoration.
So for two and a half days, in formal presentation, in a panel discussion, and over lunch and coffee and later drinks at the hotel bar, I've been trying to explain just how it is that the law so often makes no sense.  That the words of the Constitution so often provide only illusory promises of fairness and justice.  That despite what we were taught in 4th grade civics, our is The Law of Rule at least as much as it is The Rule of Law.

Which brings me to Thursday morning.

That's when Chief Justice Roberts wrote for a 6 Justice majority in King v. Burwell, that 
an Exchange established by the State
an Exchange established by the State or by the Federal Government.
It's a defensible legal argument despite Nino Scalia's accurate claim that it's
interpretive jiggery-pokery.
And it's an example, if one were needed, that when Holmes (that's Oliver Wendell, Jr., not Sherlock) said
The life of the law has not been logic; it has been experience,
He was making a significant point.  Logic has little to do with it.  Want another example?  Also from Thursday morning?  This time it wasn't the D.C. 9 but the Columbus 7.

Michael Keenan, they said (opinion here), must be tried a third time.  Oh, sure, there's no physical evidence connecting him to the crime.  Oh, sure, the lone admitted eyewitness is dead.  And oh, sure, the case gets to this point now only because the first two trials and death sentences were tainted by the very substantial exculpatory evidence that the prosecutors intentionally concealed from Keenan and his lawyers for some 20 years because, gee, if they'd passed it on, as the Constitution required them to, Keenan would likely - and properly - have been acquitted.  

But damn, they wanted that sumbitch executed.  Whatever it took.

But wait, a third trial?  Isn't that double, or maybe triple jeopardy?  Isn't there something in the Constitution about that?  Why yes, there is.  In the Fifth Amendment.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Keenan, of course, has already been twice put in jeopardy.  And now it's to happen a third time.  I've written about this before.  As I said then,
[I]t's another of those legal fictions. As the Supreme Court said in Richardson v. United States (1984), looking back to United States v. Perez (1924),
The case law dealing with the application of the prohibition against placing a defendant twice in jeopardy following a mistrial because of a hung jury has its own sources and logic.
When ordinary logic won't do, when they have to develop a new and special sort of logic, you know the rule they'll come up with makes no sense. 

But then . . . .  Well, consider the Ohio Revised Code.  Section 1.42 says
Words and phrases shall be read in context and construed according to the rules of grammar and common usage.
Which seems clear enough.  Words mean what they ordinarily mean.  Until you get to the very next section of the Code, Section 1.43(A).  That's where we learn that
The singular includes the plural, and the plural includes the singular.
That is, one person is more than one person.  And many things are just one thing.  But one person is, of course, also one person.  As many things are many things.  

Actually it begins earlier.  Section 1.02(F):
"And" may be read "or," and "or" may be read "and" if the sense requires it.
Words wholly untethered from meaning, left to the whim of the judge who decides what the "sense requires."

`I don't know what you mean by "glory",' Alice said.
Humpty Dumpty smiled contemptuously. `Of course you don't -- till I tell you. I meant "there's a nice knock-down argument for you!"'
`But "glory" doesn't mean "a nice knock-down argument",' Alice objected.
`When I use a word,' Humpty Dumpty said, in rather a scornful tone, `it means just what I choose it to mean -- neither more nor less.'
`The question is,' said Alice, `whether you can make words mean so many different things.'
`The question is,' said Humpty Dumpty, `which is to be master -- that's all.'  

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