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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« 396. Settlement authority | Main | 394. Without consent »
Sunday
11Oct2009

395. No P.A.I.N., no reform

Daniel Gilbert, author of Stumbling on Happiness (and even a blogger, sorta), gave a talk at the Pop!Tech conference a couple years ago in which he explained why humans have such a hard time appreciating global climate change as a threat. I think it also goes a long way to explain things like today's heartbreaking LA Times package fo stories about throwaway children. 

"At least 268 children who had passed through the child welfare system died from January 2008 through early August 2009, according to internal county records obtained by The Times. They show that 213 were by unnatural or undetermined causes, including 76 homicides, 35 accidents and 16 suicides."

I'm not suggesting the kids' deaths are like global warming, of course.  But our response as a society is almost identical.  Gilbert gives good reasons for that.  Here they are from the horse's mouth, while my bullet-point summary follows.

First, to borrow from Frans de Waal: "The human species is what zoologists call 'obligatorily social', that is, its survival is closely tied to group life and cooperation."  Major portions of our brain are devoted to figuring out other people, intuiting what they're thinking, what they're about to do next, and so on.  We don't respond the same way to threats that lack faces.  After showing pictures of Saddam Hussein, Hitler, bin Laden and Stalin, Gilbert says that if global warming were caused by "veddy, veddy bad men with mustaches," we would be declaring war on global warming.

Second, we perceive abrupt changes much more readily than gradual change, as he illustrates with a short video-within-the-video, starting around 4:10 from the end (the silo and barn).  The more accurate way of phrasing the point is that we are much more sensitive to relative rather than absolutely change, which (Gilbert explains) is the difference between our perception of lighting one candle in a dark room and lighting three of them in a brightly-lit room.

Third, we respond much more strongly to things that strike us as immoral, indecent, wrong in a button-pushing way, like  or the examples Gilbert gives, gay sex and eating dogs.  Gilbert points out that sex and food are things our species has spent a lot of time obsessing about for millions of years (he might have added death), but the examples of taxes, guns and Nazi-Communists taking over our nation suggest a million years isn't a strict evolutionary requirement.

Fourth: For obvious evolutionary reasons, our brains are especially well-designed to detect immediate threats, such as predators, other humans, etc.  Only the frontal lobes, that last-second addition stuffed in behind our foreheads, a retrofit feature that cost us our cool streamlined shape, worry about the future.  They occupy only a small fraction of the brain mass.

Gilbert even provides a handy acronym to remember the four features of a threat that our brain will respond to immediately and effectively: P.A.I.N., for present, abrupt, immoral, now.

LA County's child welfare system doesn't possess even one of those features.  Treating thousands of poor children badly is immoral, but not in the taboo-breaking sense of eating puppies while having gay sex.  That's why the Times provides profiles of two particular children, knowing readers won't empathize unless the statistics come with faces - treating two children badly is wrong in the taboo-breaking way. 

But, even so, there's no face to the institutions and attitudes that killed them (unless TV reporters find a scapegoat to hound out of office).  There's no threat that our brains are programmed to perceive as a threat, even as we know that thousands of children are threatened.  We even know, in a statistical kind of way, that the maltreatment increases the risk that their futures could intersect with our own in ways that are deeply unfortunate to ourselves.  But if the worst happens (to us), our survivors will have P.A.I.N. galore.

The deaths of children in the county's care isn't anything abrupt.  It's more like a slowly leaking faucet.  Here's a list of 98 fatalities from January to August of this year.  Imagine if a quarter as many kids had been killed all at once in a school massacre.  That would be different, wouldn't it? - and for once I'm not being sarcastic when I ask a question in this blog.  I think the news would feel very different.  It's the difference between horror and despair.

As for the "N as in now," as Gilbert says we accept gradual change that we would be up in arms about if it happened all at once.  His examples include smog alerts and fish that are dangerous to eat.  The enormous increase in our incarceration rate since 1980 and our rate of violent crime since 1960 are, I think, even more telling examples.

The LA Times packages shows that we live in a society that tolerates the maltreatment of children, much as we prefer not to believe that.  Those of us who work in the criminal law know that out government tolerates or even excuses the perpetration of violence against people who share certain demographic characteristics.  (Take-home safety tip: be middle-aged, male, well-to-do and white - in short, as much like the average judge as possible.) 

Gilbert's insights suggest that the refusal of those with authority to accept responsibility for their official actions might be more, or rather less, than mere hypocrisy slathered with sanctimony.  It might be the hunter-gatherer brain asserting itself.

Reader Comments (2)

If someone commits a theft with a water gun, threatens someone age 70, cashier, with bodily injury or death and has 3 previous convictions for theft. And the person threatened knows it is a water gun. is it a state jail felony theft. or is it aggrevated robbery, first degree felony
October 15, 2009 | Unregistered Commenteralex pamplin
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October 20, 2009 | Unregistered Commentersean

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