Pardon The Disruption - Chapter One

HOW THE LAW REGULATES SOCIETY

a. Mens Rea, the Guilty Mind

We are constantly defining ourselves in terms of core ideology, with designations like evangelical, secular humanist, communist, free enterprise capitalist, radical Muslim, conservative, liberal –to name only a few. Under our legal system none of these titles has any meaning whatsoever. Our entire system is predicated on man’s ability to choose – that is, it’s based on free will. Without the concept of free will, our entire system would fall. We punish criminals for willfully breaking the law. We provide for divorces because couples choose to separate. If a defendant is insane he cannot be held criminally responsible for his actions. If man did not have free will, none of this would make any sense, and the law would be radically different. As it is, a person can be convicted of a crime only if he possesses mens rea (a guilty mind).

The common law evolved in England, when freemen were no longer subject to the dictates of a monarch. Our laws in the United States initially started as a continuation of the English common law, but over time have evolved into a system that is uniquely American. And all 50 states have their own legal systems, each in a constant state of change. It was not long after the invention of the automobile that legislatures passed laws making driving while intoxicated a crime. The invention of the telephone gave rise to our anti-wiretap laws. The law has never been static, nor should it be. As our environment changes, so must our laws. With the advent of the Internet, we now have a host of privacy laws and identity-theft statutes that never existed before. But regardless of how the specific criminal statutes may change, the underlying requirement of mens rea persists in all of them.

The criminal law prohibits people from intentionally or knowingly engaging in certain acts. Without the intent (or, in some cases, at least the knowledge,) there is no crime. The violation of a criminal statute will carry with it some form of sanction. The more serious felonies will usually carry a punishment range of either five to life or fifteen to life. Lesser felonies often carry an exposure of two to ten years. Misdemeanors usually carry a maximum punishment of up to one year in the county jail. Under modern law we also have numerous alternatives to prison and jail, including such things as pretrial diversion, probation and forced drug treatment.

When a prosecutor makes an argument for punishment after a defendant has been found guilty, he is allowed to argue in terms of four basic themes. These are the four accepted reasons for sentencing a criminal convict: deterrence, retribution, punishment and rehabilitation.

When the court sentences an individual to prison, it is assumed this will act as a deterrent to others who might consider engaging in this kind of behavior. If bank robbers are sent to prison, other people contemplating robbing a bank may decide not to. When people convicted of insider trading are sent to prison, it is assumed other stockbrokers will refrain from this behavior.

Sending a criminal defendant to prison is also justified under the theory of retribution. The state is in effect acting on behalf of the victim. It is assumed that if the state will punish the person who assaulted you, you will refrain from seeking revenge through your own, shall we say, unofficial channels. The rationale ultimately is that there will be less violence in society if retribution is meted out in a controlled and orderly way by the government instead of by the victims themselves. Justice should be conducted by a rational, unemotional legal system, not left to the passions of the individual.

Punishment is what it sounds like. It comes from our moral code that says people who commit wrongs simply deserve to be punished. It is different from deterrence and retribution in that it is put upon the defendant out of a belief that he personally deserves it. It is also assumed that punishment will act as a deterrent to the defendant himself.

The final concept behind criminal sentencing is rehabilitation, the idea that society will be better off if a criminal can be treated in such a way that he will refrain from repeating his criminal conduct in the future. If done successfully, rehabilitation helps both the individual and society as a whole. It is the concept of rehabilitation that has given rise to the majority of our alternative sentencing options. Rather than sending passive drug abusers to prison, which was done in large numbers in the past, courts now require that they receive treatment in an attempt to cure their addiction.

We are very close to having a vaccine to prevent drug abuse. When it has been developed, drug offenders, after being placed on probation, will be required to undergo the vaccination process so they will no longer crave drugs. If successful, this may even promise an end to the entire criminal drug industry. With no one to buy drugs, there will be no motivation to sell drugs. Drug prosecutions currently account for over 29 percent of our criminal dockets, and give us over 25 percent of our prison population. If the vaccine works, we’ll no longer need a DEA or narcotics division in our police departments, or more prison capacity for drug defendants.

In 2009 the DEA Staffing & Budget numbers were 5,233 special agents, 5,551 support staff, and a budget of $2.602 billion dollars. Given that every police department in the entire United States has a narcotics division or at least an officer charged with narcotics investigations, these figures may represent a lowball of the actual, staggering statistics. Science may be able to succeed where punitive measures and prisons have failed. Yet, while vaccines will be seen by most as a humane and effective solution to our narcotics problem, others may perceive in them a dystopian Big Brother, invading man’s right to free will. As more and more technological solutions to man’s foibles are discovered, this debate will only intensify. Having worked at the Criminal Justice Center, I am firmly convinced that any solution is better than throwing people in prison for being drug addicts.

Many nonviolent offenders are put on probation and ordered back to school to complete their educations. The assumption underlying this practice is that, once educated, the defendant will be able to obtain a job, eliminating his need to steal. This may sound well and good, until we consider the case of an actual sociopath – someone in whom an education may quickly curdled, making him only a more effective and treacherous criminal.

Each state has its own criminal code, and each criminal code must comport with the guarantees in our federal Constitution. In most states, all sentencing is passed by judges. In the federal system, however, sentences are passed by judges within the congressionally-approved strictures of the Federal Sentencing Guidelines. The following summary is how a trial is conducted in the state of Texas. Unlike most states, Texas allows for juries to determine a criminal defendant’s sentence. It is the defendant himself who is allowed to choose before the trial starts whether to be sentenced by a judge or jury in the event he is found guilty.

b. Adversarial Proceedings

Believe it or not, there was a time when we actually resolved disputes by a process called “trial by battle.” No, really. Trial by combat resolved disputes between citizens by pitting them against one another in fights to the death. The idea was that God would preserve the life of the just man, and smite the one who was wrong. As this system evolved, people were allowed to hire “champions” who would fight on their behalves. Rich landowners would hire highly competent knights to fight their cases for them. Now the guy dying wasn’t even involved in the dispute! Needless to add, if you were poor, you couldn’t afford someone to fight on your behalf. To be faced with trial by combat against an experienced knight meant not only failure, but certain death as well. This legal system insured the wealthy and powerful would win all disputes with peasants or tradesmen too poor to acquire professional help. Sound familiar? The rich and powerful in modern society can choose a similar option, employing armies of lawyers to frustrate and evade the legal consequences of their behavior. The poor, with their free, court-appointed lawyers, do not seem to fare as well.

Over time, the process became more abstract – something more like a chess match than actual combat. Like a chessboard, the courtroom is a mock-battlefield on which experienced warriors fight by a set of pre-determined rules. Of course, litigants no longer hire knights to fight to the death, and the inherent imbalance between wealthy and poor litigants has to some degree been equalized. In the criminal courts, a defendant is entitled to a court-appointed lawyer if he is too poor to hire one of his own. The wealthy will hire what are called “free world lawyers” – experienced professionals rumored to be considerably more competent than their court-appointed counterparts, often working for $150 a day. And here, as in most of life, you get what you pay for. A highly-skilled criminal defense lawyer with a wealthy client (who may be guilty as hell) can expect to make over $1,000 an hour. The free world lawyer will make in 9 minutes what the appointed lawyer makes in a day. Free world lawyers’ vastly higher pay also means they can afford substantially greater access to resources such as investigators and proprietary legal databases. For the wealthiest litigants, the budget for litigation may be virtually unlimited. For the poor, not so much.

This disparity has been resolved in the personal injury area by the creation of the contingency fee contract. A personal injury lawyer like me will agree to be paid a portion of the recovery on a meritorious tort claim, and can even pay litigation expenses in the same way. Should the case be lost, the lawyer is paid nothing. This kind of contingency pay means that, if a poor person has a sufficiently strong case, he can show up with a lawyer every bit as competent as the wealthy and influential. The contingency fee contract, for the first time in history, actually put poor people on a level playing field with multibillion dollar corporations.

A jury trial is the classic zero-sum game. At the end of the trial, the jury will render a decision. One side will win, the other will lose. The trial itself is presided over by a judge who functions as a kind of referee. While the process itself is not very complicated, the rules of evidence are not only complex, but vary dramatically from place to place and serve occasionally as fodder for great mischief. Sometimes, for instance, a trial will be decided not on the evidence that was presented, but on the evidence that was excluded. While the overall goal of a trial is to seek truth, it also regulates the relationship between a citizen and his government. Given the massive imbalance of power between a government and an individual, the government is limited in the way it may conduct itself in a trial to ensure a fair fight.

Every criminal trial in the United States is what is called an adversarial proceeding. The state makes an accusation and is then required to prove beyond a reasonable doubt that this accusation is true. The defendant is not required to prove anything. He may sit on his hands throughout the trial. When the state has concluded putting on all of its evidence, the defense is within its rights to request an acquittal if it believes the state failed to prove even one of the elements of the alleged crime. If the defense does decide to put on evidence, they are limited by the same rules as to what they are allowed to do. Each side presents those facts that it believes will allow it to win. Each side leaves out those things that it thinks will cause it to lose. The prosecution and defense quite literally “fight it out” in front of the jury. One important thing about which I often caution my clients is that jurors do not decide the truth. They decide what has the appearance of truth. Usually, the truth is what has the appearance of truth. Unfortunately, though, there are times when things are clearly different. And this can result in a jury rendering a horrible injustice. Done in good faith, but horrible nonetheless.

While the limitations and the inefficiencies of our adversarial proceedings are well known, most alternatives are way worse. Take, for instance, the inquisitorial system, under which the state had an unfettered right to inquire of a suspect as to what he may or may not have done. The citizen was required to respond, and any refusal would be met with insane brutality to compel an answer. The Spanish Inquisition is a famous example. The state would torture defendants until they confessed, and then pass sentence. The burden was also on the defendant to prove he was innocent once the state made an accusation. The use of torture would assure a 100% conviction rate. While this system is incredibly efficient, at procuring convictions, it presents a threat of false confessions so obviously extreme as to be completely useless in determining what is true.

RANDY: The Inquisition (or, more formally, Inquisito Haereticae Pravitatis, Inquiry on Heretical Perversity) was sanctioned by the Roman Catholic Church to prosecute heretics. Your statement that extremes of torture intrinsically invalidate the facts they produce may be true, but in its day this practice was considered imminently fair. It was the duty of the Church to save suspects’ immortal souls and the use of torture on the corporeal, finite body of a heretic – for instance by binding the heretic’s arms by a heavily weighted chain and dropping him from increasing heights until he recanted. Torture was considered preferable to the loss of an immortal soul. The use of other instruments of persuasion such as the thumbscrew or the rack was considered necessary to bring suspects closer to God and protect them from eternal damnation. Life was finite but life hereafter was eternal!

ROB: An alternate method of changing the heretic’s belief was waterboarding. Medieval waterboarding consisted of strapping an individual’s arms and body onto a ladder-like device that sloped downward. The head was restrained and water was then poured down the heretic’s throat, causing a drowning sensation. Fast forward to the 21st century, and waterboarding has been used to extract information and confessions from suspects in the War on Terror like Khalid Sheikh Mohammed, alleged mastermind behind the Twin Tower disaster as well as other atrocities across the world.

As I understand the techniques the CIA used to extract confessions from Khalid Sheikh Mohammed, he was placed on a board and tilted backwards while a cloth was placed over his head and water was poured across the cloth to cut off oxygen and create the sensation of drowning. If you asked a lot of people how they perceived the balance between this harsh method of interrogation and the supposed benefits in saving innocent lives the world over, you would quickly be informed this was a fair trade-off. When comparing the waterboarding of the inquisitions and the waterboarding of Khalid Sheikh Mohammed, I don’t find many important differences. In fact, the United States has even secured a legal opinion permitting this technique to extract information. It is sad to have to acknowledge this decision came about even though after World War II the United States government executed Japanese soldiers for using the very same waterboarding technique on American soldiers. Fair is clearly a relative term.

CLAY: OK, guys, I get it. Your premise is human nature has not changed at all in the past 1,000 years. I will concede that. We are just as capable of the barbarism of the 12th Century in the 21st Century. Internet videos are filled with examples. My point is that exponential advancement in technology will render this fact irrelevant. We do not need the iron maiden and disembowelment when technology will allow us to peer into the human mind non-invasively. Coercion will simply cease to be necessary, false confessions a thing of the past. Still, as interesting as the Dark Ages may be, let’s move on to modern-day jurisprudence.
 
c. Criminal Trials

In the Criminal Courts, a formal charge is filed by the District Attorney’s Office, accusing someone of violating of a particular criminal statute. The charging instrument puts the citizen accused on notice as to what he must defend against. There are several fundamental rights that are constitutional guarantees to ensure a fair trial. This is necessary because the state has billions of dollars and the defendant usually has very limited resources. The fundamental rights that are of the most importance are the right to trial by jury, the right to confront your accusers, the right not to be forced to give evidence against yourself (commonly known as “pleading the fifth,”) the right against unreasonable search and seizure (secured by the Fourth Amendment,) and the right to counsel (secured by the Sixth Amendment.)

Unless the police witness a crime or see contraband in plain sight, they are generally required to obtain a warrant before they can detain a suspect or search his possessions. This requires them to go before a judge and demonstrate probable cause to a neutral magistrate, who can then issue a search or arrest warrant. These protections were put in the Constitution by our founding fathers to protect against the abuses that had historically occurred in the way governments would mistreat their own citizens. It was assumed people should be able to go about their daily affairs without being harassed by their government.

To prevent the state from reaping benefits from warrantless searches and seizures, the courts fashioned what is called the “exclusionary rule,” which prohibits the prosecution from presenting illegally-gathered evidence at trial. This remedy was fashioned for two reasons: to prevent the state from benefitting from ill-gotten gain, and to deter police in the field from violating constitutional protections by removing the impetus to do so. While, unfortunately, some officers will in fact violate an individual’s rights and then fabricate facts that would render the evidence admissible at trial, the exclusionary rule has proved largely effective.

It is the jury who then listens to testimony and views evidence in order to render a verdict. They listen to each witness and weigh his credibility. Each individual juror is functioning as his or her own personal lie detector. (At present, actual polygraph examinations are inadmissible at trial.) Legally, the jury is a trials “finder of fact.”

But how do juries determine whether they are being lied to? Usually, it’s some combination of what their guts tell them and how certain forensic evidence – for instance, fingerprint evidence – persuades them. It was a long arduous process before fingerprint analysis was first allowed in a US court of law in 1911 in Illinois. All other states soon followed, relying on the Illinois case as authority. The courts in England had already started using this new technology as early as 1891. It is now a routine and quite common piece of evidence used in many trials. A similar type of forensic evidence, with a similar history in the courts, is DNA analysis. It was not until science could demonstrate by accepted legal standards that DNA evidence was truly reliable that it was first allowed into evidence in 1988.

After both sides have had an opportunity to present their evidence, the court gives jurors their final instructions on how to conduct themselves in reaching a verdict. Each side offers a closing argument, directing jurors’ attention to that evidence they believe to be most important. After the arguments are concluded, the 12 jurors are sequestered in a private jury room, where they will deliberate until they reach a unanimous verdict.

If the jury finds the defendant not guilty, he is released. If the defendant is found guilty, the punishment phase begins. Each side is allowed to present evidence as to what sentence would be appropriate. Things such as a prior criminal history, abuse the defendant may have suffered as a child, and the impact this crime has had on the victim are put before the jury to help them reach a decision that is fair. Once the punishment evidence is completed, the court again instructs the jury as to how to conduct themselves with regard to sentencing. Both prosecution and defense once again have an opportunity to make a closing argument with regard to an appropriate sentence, and the jury is once again returned to the jury room to deliberate in private. The sentence the jurors agree upon must also be unanimous.

When the jurors agree upon a sentence, they notify the bailiff and are returned to the courtroom. The sentence is received by the judge and then read out loud in open court. It is at that moment the defendant knows his fate.
d. Stare Decisis

Black’s Law Dictionary defines precedent as: "a rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases." Stare decisis (which is Latin for “to stand by the decision”) is the common law principle that once something has been decided, all future cases with a same or similar fact pattern must be decided in the same way. It is the heart of the English Common Law system that was adopted by the US and is still in use today. The system did change somewhat in that statutes, laws, codes, and ordinances can be passed by legislative bodies and can overrule or supplant old common law rulings.

If a court rules that a statute is not sufficiently clear to determine a single outcome on a single set of facts, it may declare that statute “void for vagueness.” If it finds that a particular set of facts, when applied to the law, produce a result that is clearly out of keeping with the legislators’ intent, it can rewrite the statute to do away with the ambiguity. There are mechanisms in place to correct situations where stare decisis or precedent would subvert rather than enforce the intended rule of law. Precedent is an incredibly important concept because it allows for stability and predictability in the enforcement of all laws. Everyone is to be treated the same. What is good and just for one should be good and just for all.

In the 1700's society was slow to change and the legal system was intentionally set up to keep pace. Great emphasis was placed on laws being known in advance so that a person could, for example, engage in commerce secure in the knowledge that courts would enforce the terms of a contract as the two parties who’d signed it had intended. Criminal law, similarly, had to be clear enough that everyone was on notice as to what was and was not illegal. The law was to be a tool of fairness, not a mere trap for the unwary. Today, massive changes in technology have complicated citizens’ ability to stay ahead of changes in the law.

One quick example is the law concerning patents. Originally, the purpose of a patent was to give protection to its inventor, to spur innovation and new and better products. In the 21st Century, however, we see large corporations such as Samsung, Apple, Google, and other household names buying up hundreds of patents to ward off competition. When new products are being considered, the possibility of a patent fight over intellectual property looms large. Apple recently won a one billion dollar judgment against Samsung for infringing on of the patents in the iPhone. While not a knockout blow to Samsung, this will certainly make smaller manufacturers think twice before entering the cell phone arena. What was meant as a defensive measure – protection of inventors’ innovative ideas – has now become an offensive weapon. Buy enough patents and you can force out any competition by alleging they have infringed on one or more of your arsenal of thousands of patents.

These 450-pound gorillas can wage a legal fight, employing an army of lawyers, just to hamstring the little guy before he can even get started. Genome companies are trying to obtain as many patents as they can, and as fast as possible, to freeze out competitors in whole areas of genomics. The U.S. Supreme Court has just ruled that natural human genes cannot be patented, but the legal landscape for genetic patenting is far from settled. The privacy of a person’s genetic makeup – what can be altered to lessen human suffering or improve performance – cropped up as a legal issue overnight. The modern legal system is not suited to fashioning remedies for novel problems that are changing at exponential rates. This issue will be revisited later when we discuss economic systems.