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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In Our Name
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« 258. Lokution | Main | 256. The conservatism of American law schools »
Wednesday
Apr112007

257. Southern strategy

One of the themes of this blog is that we should evaluate our legal system by looking at what it does rather than examining the words its judges use or their protestations of good intentions.  That approach can be applied more broadly, too. 

Take Richard Nixon's War on Drugs.  If one were to reason from effects backwards to intent, one would have to conclude that Nixon was not motivated to reduce the consumption of illegal drugs.  We're wrapping up the fourth decade of "war" and while there's some evidence that fewer people are passing around joints today than when the Grateful Dead was doing 10-minute versions of "Peggy-O," more are using methamphetamineprescription painkillers, crack cocaine and ecstasy.

Here's Brian Bennett's huge selection of government data presented graphically - lots of flat lines.  And here's a chart suggesting marijuana is as readily available to teenagers today as in 1975.  If the intent of the "War on Drugs" is measured by effects, and its effects don't include decreasing drug use, or even limiting drug availability, we can only conclude its intent was/is something else. 

Reasoning back from effect to intent, the intent of the "War on Drugs" must have been to:

    1. Destroy the economies and destabilize the polities of Colombia, Bolivia, Ecuador and Peru. 
    2. Simultaneously encourage police corruption.
    3. Vastly increase the number of children growing up without their fathers, and teach them that it's normal to have family members in jail.
    4. Vastly increase the number of people under "correctional control" - in jail or prison, on probation or parole.  In 1980, which was already nine years into the "War," 1,842,100 Americans were under correctional  control.  In 2005 the number was 7,056,000.  That's an increase of about 383%.  Over the same period, the national population increased by 23%.  (Here's the 1980 population figure, here's 2005.)

I'm quite capable of thinking ill of Nixon, but even I can't really believe he intended effects 1, 3 and 4.  (He might not have cared, but he probably didn't intend them.)  I can, however, easily believe he intended # 5, not for its own sake but - again reasoning backwards from effect to intent - because it represented the disenfranchisement of so many people who were highly unlikely to vote Republican.  The high percentage of Black prisoners can be seen as just one aspect of the Republican Party's extremely successful Southern Strategy.

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July 20, 2011 | Unregistered CommenterNolanMaria35

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