267. Blue helmets
Some of the corruptions of the War on Drugs are obvious, like dirty cops and (much harder to detect and therefore, I suspect, proportionately even more common) dirty judges. (See post 53.)
But another type of corruption is more pervasive and much harder to perceive. If a judge suppresses drugs in one case, or dismisses charges against some life-wasting addict, what difference does it make? Trying to arrest our way out of the drug problem is like Cúchulainn fighting the waves, or Herakles against the Hydra if Iolaus hadn't been so handy with the cautery.
The evident futility of so much of their working lives takes a toll on federal judges, I think. Not just in an existential, meaning-of-it-all way (though maybe in that way, too), but in the loss of any sense of connection between events inside the courtroom and events outside it.
Forty-nine percent of federal prisoners are locked up for drugs, and another 19.3% because of their immigration status. (Table 14 in this report.) How can a federal judge mete out the ferocious federal sentences for those offenses day after day without beginning to suspect that none of it makes the slightest difference to the prevalence of either drug use or illegal immigration?
Add to that sense of futility the moral corruption that always accompanies too-easy gratification. A business executive who can get his company to pay for whatever he wants soon discovers he wants more things. By self-selection judges are people who place a higher value on the gratifications of power than on money, as our Chief Justice somewhat back-handedly reminded us at the New Year. (See post 25.)
In drug cases federal judges can achieve the gratification of proving they're more powerful than Congress without paying the psychic price of responsibility for what happens next. What happens next was going to happen, anyway. "She should have died hereafter." It just doesn't matter.
Except to the individual defendant, of course. The real significance of victimless crimes, for judges, is that there's only one person in the courtroom.
This is, I think, the most corrosive form of corruption imposed on our society by the War on Drugs. There are powerful, internal psychological and emotional forces driving federal judges to think up ways to avoid imposing ridiculously-long sentences on people who are dangerous only to themselves and those unlucky enough to be related to them, or foolish enough to love them. Judges want to resist confronting the reality that a significant part of their professional lives is devoted to cruel futility; they enjoy the Oklahoma-judge-like rush that the exercise of power gives them; and they feel sorry for the poor schmucks standing in front of the bench.
Against these powerful, personal currents is nothing but the impersonal imperative that they should subordinate themselves to the will of Congress. Really, it's not a fair fight.
One of the strongest evidences of judicial pathology is the nearly-universal practice of federal judges of referring to the prosecution as "the government." (See post 13.) The obvious implication is that the judiciary is not part of "the government" but something else. The less-obvious implication is that the judiciary isn't on the side of "the government."
I think most judges like to see themselves as standing between the people and "the government." It's a puerile fantasy, of course, but the unreality isn't the worst of it. The fantasy is based on an unexamined assumption that the people aren't the government: that democracy doesn't exist, or isn't legitimate. The most explicit statement of this mindset is found in the decision that held that the people can't control the influence of money in their elections:
What this means is that the government is not "the people ... collectively", but something alien, imposed upon them, from which they need to be protected.
With search and seizure law, judges promote themselves as the blue helmets in the War on Drugs. They consider themselves morally neutral.
The problem is that while it's easy to pretend the Constitution says this-that-or-the-other, once you start the pretense you can't stop, unless you're the Supreme Court. And the pose of moral neutrality that makes psychological sense for federal judges confronted with an endless conveyor belt of drug cases also requires a pose of moral neutrality as between rapists and rape victims, between murderers and murder victims. (See post 259.)
It means, above all, taking no responsibility for the consequences of tolerating extreme violence.
Monday, May 7, 2007 at 10:14PM in "The government", De-democratization, Fourth amendment
Reader Comments (1)
The Blue Helmet Syndrome is more virulent on habeas review of state prosecutions. Whatever respect federal courts have for the will of Congress is more than they give to a mere state. And the time it takes a defendant to work his way through the state courts means that when he gets to federal court he is much more likely to be only interested party in the courtroom.
Also, my sense of US DOJ's approach to drug cases, at least in my jurisdiction, is that they are extremely careful and conservative in their filing decisions. This makes perfect sense because drugs are their main business. Few AUSAs would waste the time trying to win a marginal case when there are a stack of stronger cases waiting right behind.
State prosecutors have less ability to pick and choose among their fact patterns because they are more concerned with victim-ful crimes like rape and murder. When these cases arrive in federal court, they look weak from the police or procedural standpoint when compared to those generally brought by AUSAs. At least Stone v. Powell stops what I fear would be the wholesale reversal of 4th Amd cases.
Oh -- getting referred to as the "government" has always irritated me. Thanks for explaining why.