101. The incompetent Supreme Court

Most criminal trials take place in state court.  In 2003, the number of criminal prosecutions in California's superior courts (their jurisdiction is explained here) was more than 14 times the number of prosecutions in the entire federal system.  Even in little old New Mexico, ranking 36th among the states in population,  our  prosecutions were fully 95% of the federal total.  And that's not including our municipal courts.

And yet practice in state criminal courts is almost wholly directed by federal judges.  Specifically, by the nine judges of the U.S. Supreme Court.  Every significant aspect of state criminal trials must be conducted according to the rules laid down by the Supreme Court. 

Unfortunately, the justices don't know much about criminal law, and even less about its day-to-day practice.  Only one of the justices ever practiced criminal law in the state courts: David Souter, who worked briefly in the criminal division of the New Hampshire Attorney General's Office, then supervised that division.

If you look at the Federal Judges Biographical Database, you'll see that Antonin Scalia spent a total of seven years in the full-time practice of law, back in the 1960s, when he worked for Cleveland's  Jones, Day.  The firm has grown a great deal since Scalia's day, but it's illuminating to look at the type of place it is.  From its website: " Jones Day is one of the largest international law firms, and we count more than 250 of the Fortune 500 among our clients."  It has 2,200 lawyers but none of them, according to the website, practices criminal law.

In short, Jones, Day bears the same relation to the American legal system as, say, Masa bears to the American restaurant industry.  (See post 25 and post 31.)  It's expensive, it's elite, and maybe it's particularly good at what it does - but the whole point is precisely that it's not remotely representative.

Clarence Thomas spent even less time in the full-time practice of law than his soulmate, just five years total, of which two were as corporate counsel at Monsanto and three were spent at the Missouri Attorney General's Office working on tax cases. 

But they're grizzled veterans of the courtroom compared to Stephen Breyer, who appears to have spent just three years in the actual practice of law, in the Justice Department of the 1960s.   But Ruth Bader Ginsburg tops him: despite her reputation as a fiercesome advocate for feminist causes, she never devoted herself to the full-time practice of the law. 

John Paul Stevens, who grew up wealthy, and Breyer, who married into wealth, both practiced antitrust law in the days when we still had antitrust law - and antitrust law, it's hardly necessary to point out, is of greatest interest to those in the economic big leagues.   Antitrust law is glacially slow-moving (antitrust cases are, or were, the quintessential "paper cases") and involves vast sums of money, making it the opposite of criminal practice.

In short, it's almost - almost! - unfair to criticize the justices for screwing up the criminal law.  In a literal way, they don't know what they're doing.  I'd be curious to know if Scalia, Thomas, Breyer or Ginsburg has even been inside a county courtroom while a criminal trial was underway. 

Their  assistants, those shiny new graduates from Harvard/Stanford/Chicago/Yale (see post 41), aren't in any position to compensate for the gaps in their bosses' background.  The clerks wouldn't have won the competition to become clerks if they'd ever gotten any closer to a criminal courtroom than paying a parking ticket.

Harvard's Professor William J. Stuntz made this point in The New Republic last summer, when he pointed out that the issues being talked about in connection with Chief Justice Roberts' appointment were of infinitely greater symbolic than practical importance:

If Roe v. Wade goes by the boards, abortion law will stay roughly the same. Nor will American life change much if the Ten Commandments start dropping off courthouse walls.

By contrast, another aspect of the Court's work affects lots of lives. The United States incarcerates more than two million people in its prisons and jails today, roughly seven times the number held in 1970 and five times the 1980 figure. For the past 40 years, the Supreme Court has helped shape the process that puts those men and women behind bars.  When can police officers frisk suspects on the street or search their cars? When do police have to give Miranda warnings? How hard can they push suspects to confess--and how hard can prosecutors push defendants to plead guilty? How must juries be selected? Which sentencing procedures are permissible, and which ones aren't? Supreme Court justices answer all these questions and dozens more like them.

The answers matter enormously. Which means that the Supreme Court's most important job is not managing the culture wars. Regulating the never-ending war on crime is a much bigger task. Alas, it may also be the job the Court does worst.

And note that Stuntz's catalogue of questions doesn't even consider the impact of violence on individuals, victims and friends/spouses/children/friends of victims.  Or, for that matter, future victims.  William O. Douglas turned loose a man who obtained sexual satisfaction by beating to death the woman he was raping.  (See post 47.)  That was very nearly the same as granting him leave to do it again.  But then, Douglas was a bankruptcy and securities lawyer.  Maybe, it might be said in his defense, he had no idea what he was doing.

Comments

[AC]

Our current explosion in imprisoned people has everything to do with the unwinnable drug war. Until society starts to combat the root of crime (poverty, poor education, lack of employment opportunities, lack of health care and childcare), the spiral of criminality in many areas will continue as the state is asked to take care of problems that it is as ill-equipped to handle and as ineffective as trying to prevent global warming by having everybody buy hybird SUVs.