About This Blog

Judging Crimes is a blog about criminal law, violent crime and the judiciary, dedicated to making the liberal case for greater democratic control of the criminal justice system.  It's a "view from the trenches" because it's written by a practitioner, not an academic or journalist.  It examines the changing role of the judiciary in American society by looking at what judges actually do, rather than what they say.  I know what they do because I deal with the consequences every day. 

Opinions issued by judges, from Supreme Court justices on down, are justifications for the exercise of governmental power.  But it is the exercise of power itself that should command our attention, not the justifications.  Judging Crimes is concerned with the reality of judicial power rather than the verbal formulas used to defend it. 

American law professors have long liked to say they teach their students "to think like a lawyer."  Learning to think that way is a matter of internalizing certain assumptions.  The practice of judging is likewise based on a foundation of shared assumptions, among them that the United States Constitution -- a document of 8,335 words, the length of a book chapter -- provides an answer to every question.  Rather like a Ouija board.

These assumptions are so ingrained -- and their internalization is so necessary to the successful practice of law -- that most people who subscribe to them aren't even aware of having done so.  Judging Crimes will try to engage not just with the expressions of judicial power, but with the assumptions on which those expressions  rest.  

Judging Crimes won't be filled with daily entries commenting on the day's events or provide a best-of-the-web welter of links.  Many other blogs already do that, far better than I could hope to do.  (Check out these.)  Instead, Judging Crimes will contain pieces of a length that might seem long for a blog but would be short in a serious magazine.  I hope to post new pieces several times a week.

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« 242. Nuts | Main | 240. Round up »
Thursday
Feb222007

241. Goings on around town

This year's Eustace Tilley anniversary issue of The New Yorker has several items of interest, such as this:

Last March, Supreme Court Justice Clarence Thomas and his wife, Virginia, joined [24 and The 1/2 Hour News Hour producer Joel] Surnow and [24 head writer] Howard Gordon for a private dinner at Rush Limbaugh’s Florida home.

At least when Ronald Reagan palled around with conservative pundits, he held out for George Will

Jane Mayer's great article about torture and 24 quotes Joe Navarro, introduced as "one of the F.B.I.’s top experts in questioning techniques."  Navarro critiques the interrogation techniques favored by Jack Bauer, the Kiefer Sutherland lead character, on 24 (shouldn't it be 144 by now?): “Only a psychopath can torture and be unaffected."

Navarro, in an interview with Bluff Magazine - honestly, I don't make up these names - was asked: "Does that good-cop-bad-cop thing really work or is it just for the movies?"  And he answered:

No, it doesn’t. I did a study, along with the Bureau of Prisons, which found that criminals actually laugh at the good-cop-bad-cop thing. They think it’s a joke and they have no respect for it. What they do respect is the guy that comes in all cool, calm and collected. That scares them the most. It’s almost like the computer HAL in 2001: A Space Odyssey, with that scary voice that’s non-emotive. That really gets them.

When interrogation techniques become bywords in the popular culture, it's like when your local paper prints a list of ten hot stocks: it's way too late.  Techniques are effective when they aren't perceived as techniques.

I've always thought that much of the pressure of an effective interrogation is internally generated by the suspect: it's just very hard not to obsess about the secret you're trying to keep.  It becomes huge, an inflating bubble in your chest, and the more the interrogator intimates that he knows already, the more difficult it becomes for the suspect to maintain the energy level necessary to keep it concealed.  Table pounding and yelling is a message that the interrogator doesn't know.  It's a relief.

Surnow, the focus of the article about torture and 24, seems as refreshingly unclear on the distinction between life and TV as any old-fashioned Hollywood lefty - it's nice to know some things don't change.  

The show's basic plot line is that a horrible terrorist attack will take place unless our psychopath can get information out of their psychopath in time.   So what reliable methods can our guy use to get their guy to talk? Bob Cochran, another of the show's producers, has a question he likes to pose to those who express reservations about treating psychopathic violence as heroic: "Cochran demanded to know what the interrogators would do if they faced the imminent threat of a nuclear blast in New York City, and had custody of a suspect who knew how to stop it."

It's a college dorm-room debating point, of course: how, exactly, do you know that a bomb is going to go off in a certain number of minutes, yet don't know where it is?  (The difficulty of answering questions like that explains why Hollywood has always been prepared to throw money at writers.)  The unfortunate tendency of some American soldiers to confuse 24 with reality prompted West Point's dean Patrick Finnegan to fly out to Hollywood to remonstrate with the 24 crew.  Finnegan made the obvious point that 

torturing fanatical Islamist terrorists is particularly pointless. “They almost welcome torture,” he said. “They expect it. They want to be martyred.” A ticking time bomb, he pointed out, would make a suspect only more unwilling to talk. “They know if they can simply hold out several hours, all the more glory—the ticking time bomb will go off!”

More than that, the would-be martyr could stop the torture at any time by giving false information, or multiple locations.  But, of course, in the show the terrorists eventually just lose their will and tell all.  (Making that transformation seem halfway-plausible is how character actors make their money in Hollywood - talk about depending on technique!)

Now, wasn't there another TV show, once upon a time, in which a relentless interrogator cleverly sensed and exploited the weaknesses of bad guys, by the end of the episode breaking the bad guy's will, reducing him or her to a repentant dish rag?  Why, yes, there was.  And that tells you the real progenitor of Jack Bauer: he's Perry Mason with a hacksaw.

The same New Yorker issue has a profile of Domino's Pizza man Tom Monaghan, who, as most people know, devotes his money to conservative Catholic causes.  Monaghan had a terrible childhood.  His father died when he was four and his mother made only fitful, short-lived attempts to be a parent.  Between those unhappy episodes she put him in orphanages, foster homes and eventually a juvenile-detention home. 

One line by reporter Peter J. Boyer seemed particularly telling: "[Monaghan] had spent much of his young life after the orphanage on the streets, avoiding his mother, and he always believed that if it weren't for his faith he might have crossed a line from which there was no easy return."

It has always seemed to me that the appeal of street gangs is that they offer a substitute family.  If you grow up without a functioning family, with no secure connections to others, what a relief it must be to find an organization that cares enough to tell you what to wear, what to think, which people to like and which ones to hate, how to spend your time, what music to listen to, what slang to use - everything! 

It hadn't occurred to me before, however, that something as far removed from la vida loca as the pre-Vatican II Catholic Church could meet some of the same needs with its cry-now-laugh-later view of life and afterlife.  But Monaghan seems to have been just the sort of abandoned, needy kid who winds up in gangs, perpetrating Jack Bauer-type violence on people a little less definitively in possession of terrorist secrets than the extras in 24.  Instead of that, Monaghan introduced corrugated-cardboard pizza boxes, opened three stores a day for a while, and is now building Ave Maria, Florida.  Not only that, but he lived past his twenties, too.

Reader Comments (2)

Doesn't the prosecutor's charging discretion solve any dilemma with the ticking-time-bomb question? If a cop thinks that (1) the bomb will go off and (2) that torture might stop it, then I suppose his choice is clear and torture is the answer.

But the cop has still committed whatever crimes are implicated by the torture.

If the cop in fact stops a ticking bomb before it explodes, a prosecutor won't have too much problem forgetting to file charges. But if the cop is wrong about either premise, he should be prepared for a long stint in prison, which I would hope would require him to evaluate his premises more skeptically.
February 28, 2007 | Unregistered Commenterneilalice
I find all the entries so far--I've read down from the top--wonderfully interesting. This one is just particularly good.
March 5, 2007 | Unregistered CommenterBob

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