That Sneaky Cur, The Defense Lawyer

A quick quiz: When you think of phrases like ‘all lawyers are liars,’ ‘the law is an ass,’ ‘first thing we do, let’s kill all the lawyers,’ what vision of miscarriages of justice come to mind? Do you think of the innocent being deemed guilty, or do you think of the guilty getting off scot-free? Let me venture a guess: it’s the latter. Moreover, I would also surmise that the kind of lawyer you have in mind when these images of law present themselves is a very particular one: the defense lawyer. A sneaky, unethical, slimy, conniving, opportunist who represents the reprehensible, who puts his morals on hold and sallies forth to defend the indefensible, looking for loopholes in the law through which his client may wriggle, away from the grasp of the law and the virtuous society which seeks to prosecute him. Isn’t that really the worst kind of lawyer? The defense lawyers? You know, the ones who defend the ‘guilty’?

We have plenty of cultural representations to thank for this image of the defense lawyer. (I was reminded of this all over again as I sat through the second season of Broadchurch; in the last episode, the assistant prosecutor makes sure to tell the eager assistant defense attorney that she is a ‘horrible person;’ the series makers have done their best till then to drive us to the same conclusion; she is, after all, shown to be the master of the dirty trick, anything to get her client, a murdering pedophile, off the hook.) Remember the phrase ‘all lawyered up’ made so popular by one police and homicide procedural after another? Apparently, policemen and judges and detectives just want to do their work, but those pesky defense attorneys get in the way.

These are strange representations to deal with in a country engaged in the process of a gigantic human rights violation called ‘mass incarceration.’ Here, prosecutors engage all too often in gross misconduct, piling up charge after charge on their initial indictments, which they will then drop down to force accused into plea deals for lesser sentences, thus often forcing the innocent to choose jail time. They strike us as even stranger when we consider that the hardest working species of lawyer is the public defense attorney: overworked and underpaid, staggering under a caseload that would bring the most ardent workaholic to his knees.

This state of affairs is entirely unsurprising. We are a very self-righteous species, blessed with a sense of our own rectitude and of the guilt of others; our insecurity in the former dimension makes us lash out in the latter; our theories of punishment are infected with petty, vicious, vindictiveness. We suspect legal protections for the accused because we do not imagine ourselves ever needing them; they are there merely as smokescreens and obfuscations of the legal process. So those who employ them must be suspect too; they must be sophists and liars, manipulators employing deceitful sleight of hand maneuvers to pull the wool over our collective eyes.

Perhaps we should be more tolerant of the defense lawyer; perhaps we should not rush to judge them too quickly. Prudence bids us do so; we might need one someday.

How Many Constitutional Amendments Are There?

The short answer: the number of times the Supreme Court has ruled on a constitutional question. Every time the Supreme Court grants certiorari, allows a case to move ‘upwards’ from state and Federal courts to its chambers, and then proceeds to rule–keeping in mind the supposedly relevant precedents, and on the basis of a coherent theory of the interpretation of legal texts–it offers us an amended constitution. Every act of interpretation–sometimes plain literalist, sometimes originalist, sometimes purposive–adds meaning and texture to the text of the articles of the Constitution. Thus the content of the Fourth Amendment is not to be found in the Constitution; it is to be found in the cumulative history of all Supreme Court rulings on cases that have rested on contested interpretations of the Amendment. What does ‘unreasonable’ mean? What does ‘search’ mean? What does ‘seizure’ mean? What does ‘persons’ mean? What does ‘effects’ mean? What does ‘probable cause’ mean? To decipher this meaning, scattered over thousands and thousands of pages of Supreme Court rulings is an almost insuperable and intractable task; it is much easier, therefore, to fall back on the simplest formulation of all: ‘The Fourth Amendment says that…’. But the filling out of that particular that-clause will call for the expenditure of considerable ink, and in the end, it will appear that the protections of the Fourth Amendment are considerably more ambiguous–in several dimensions–than previously imagined, by both its detractors and proponents alike.

These considerations show that talk of ‘constitutional protections’ must always proceed hand in hand with talk of constitutional interpretation, with the history of actual supreme court rulings on the constitutional question under discussion. Such inclusion is especially necessary when giving someone legal advice; as Justice Holmes sagely pointed out many years ago, the law is what the judges say it is: “The prophecies of what the courts will do in fact, and nothing more pretentious.”

Our nation is entering a period of great legal uncertainty; there is much talk of taking cover under constitutional protections, of seeking refuge from an authoritarian government under the covering canopy of the Bill of Rights. But the text of the Bill of Rights is not sufficient to provide such protection; the Supreme Court rulings on Bill of Rights cases are far more germane. To look only to the Constitution is dangerously complacent; talk of legal rights without actual legal protections is hollow.

Many a patriot is disappointed and disillusioned to find out that in point of fact the Fourth Amendment is almost hollow in content; its protections systematically eviscerated over the years by repeated weakenings through selective, ideological, and politically motivated interpretation. Mass surveillance; warrantless searches; stop and frisk; the list goes on. Where is the Fourth Amendment?, the patriot asks. The answer is: not in a small booklet, but in that section of the law school’s library that deals with constitutional law.

Constitutional conventions, two-thirds majorities, ratifications by state legislatures–such is the machinery of the constitutional amendment by legislative fiat. Such convolutions are kludgy compared to the awesomely efficient method of Supreme Court rulings; there, in the foundry of the Supreme Court’s chambers, new meanings are forged every year, every Supreme Court season.

Machiavelli On The Unjust Republic’s Susceptibility To Treason

In Book I, Chapter VII of The Discourses on Livy, Machiavelli writes:

[N]othing makes a republic so stable and strong as organizing it in such a way that the agitation of the hatreds which excite it has a means of expressing itself provided for by the laws….whenever one finds foreign forces being called in by one faction of men living in a city, it may be taken for granted that the bad ordinances of that city are the cause, for it does not have an institution that provides an outlet for the malignant humors which are born among men to express themselves without their resorting to illegal means.

The laws of the republic are, for Machiavelli, part of its leader’s political toolbox for maintaining its stability and ensuring its longevity and prosperity. A crucial and indeed, essential, function of the laws is the channeling of discontent toward safe and speedy resolution. Where such channeling does not take place, the citizens “have recourse to illegal means, which cause the eventual ruin of the entire republic.”

These passages remain instructive. As I read them, I scribbled the following note in the margins of my copy of The Portable Machiavelli (Penguin Classics, Bondanella and Musa trans., 1979):

Treason is more likely in an unjust state.

Indeed. Where there is no forum for the expression of discontent with the republic, we might come to see, through a Freudian or Nietzschean lens, that this repressed desire or drive for amelioration of injustice will find expression through some other means. If the republic is lucky, this drive will be directed inwards and result only in the destruction of the discontented. If not, that drive will find outward expression, directed against the republic, by any means necessary. Violence and treason will come to seem reasonable alternatives to the oppressed; aid will be sought wherever it may be found, and then pressed rapidly pressed into service. Allegiance to the republic will fall away; redressal of oppression and injustice will come to occupy center stage in their politics of those who protest. The republic will come to stand for something other than its republican ideals; its laws, supposedly its most noble possession, will appear debased and unworthy of commanding obligation.

We should keep this in mind when we rush to criticize those who would dare choose unorthodox means of protest. Merely urging them to legal forms of protest is not enough; it must also be asked whether the legal arrangements of the republic in question would allow their experienced injustice to actually be addressed, or will merely cause their protest to fizzle out. The wise ruler witnesses discontent in his state and wonders the republic law’s may be amended his laws so that future protests find a forum for expression and redressal; the unwise merely ratchets up the repression or becomes defensive, blaming the discontented for having the temerity to speak up and act.

Note: These passages led to a vigorous discussion today in my Political Philosophy seminar, an always gratifying response to an assigned reading.

A Bedtime Story About ‘Immigration And Separation’

Last week, as is our custom at home, I read to my daughter before I put her to bed. (We pick a mix of ‘long stories’ and ‘short stories’ and settle on a number beforehand, one which has to be conformed to by a ‘promise.’) On this particular night, the ‘long story’ was Edwidge Danticat‘s Mama’s Nightingale; I did not know what the book’s contents were and only picked it up because, well, the author was Edwidge Danticat. That’s not entirely accurate: the subtitle did say A Story of Immigration and Separation but I presumed it was about an immigrant child feeling homesick for the home she has left behind. Perhaps, subconsciously, I had hoped to be able to tell my daughter about my migration to the US, my occasional nostalgia for an older ‘home.’

The opening passages of Danticat’s story soon dispelled these hopes:

When Mama goes away, what I miss most is the sound of her voice….For the last three months, Mama has been at Sunshine Correctional, a prison for women without papers….Every night after he makes dinner for us and helps me with my homework, Papa sits at the kitchen table and writes letters to the judges who send people without papers to jail. He also writes to our mayor and congresswoman and all the newspapers and television reporters he’s heard of. No one ever writes him back.

I’ll admit to hesitating when I read the bit about an imprisoned mother; I was reading to a not-quite-four-year-old after all. But I pressed on. My daughter’s curiosity about why this girl had been separated from her mother was not easily satisfied; I did the best I could to explain the surrounding context.

Danticat’s story is ultimately one with a happy ending–a family reunification–in which the young girl who is the subject of the story plays an empowered and leading role. I read–with some relish–those parts of the book in which the young daughter of the imprisoned mother is able to intervene in her mother’s case; there was ample opportunity here for my daughter to find behavior and attitudes worth emulating.

My story reading over, I noticed the book carried a postscript by Danticat, which I read aloud as well. In it, Danticat notes that she is the child of parents who migrated to the US before she could, that she was unable to join them because they were ‘without papers,’ a notion which fascinated her then and resulted in her writing this current story. And then at the end, there was a straightforward recitation of some grim numbers, an accounting of the tens of thousands of who have been ‘returned’ or ‘removed’ from the US–thus splitting many, many families asunder–by the Obama administration.

I have heard of, and read, those statistics many times; they have featured in many political debates I have participated in. But my relationship to them, despite being an immigrant myself, has always been a rather peripheral one. Not on that night, not with my daughter sitting on my lap. As I tried to finish reading Danticat’s postscript, my daughter looked at me in some surprise: my voice had caught in my throat, and I was unable to continue reading aloud. I tucked her in just a little more affectionately that night.

A Literary Semester To Look Forward To

This fall semester, I will teach three classes; all feature literary components. They are: ‘Political Philosophy,’ ‘Philosophical Issues in Literature,’ and ‘Existentialism.’ The following are their course descriptions:

Political Philosophy: Shakespeare and Political Theory

In this class, we will read Shakespeare’s famous ‘history plays’—Richard II, Henry IV, Parts I & II, Henry V–as political theory texts. We will set up our reading of these texts with ‘realist’ classics from political theory—Machiavelli and Hobbes to begin with, and then after reading Shakespeare, Nietzsche–and investigate their resonances with Shakespeare’s writings. We will be primarily concerned with that prime political entity, power: its seizing, sharing, retaining, usurpation, and deployment.

Existentialism:

Rare is the philosophical doctrine that straddles literature and philosophy as effortlessly as existentialism. Sometimes thought to be a purely French twentieth-century phenomenon, existentialism is both a philosophical position with a long pedigree and a literary movement with global presence and presence. In this class, we will examine literary and philosophical works in an effort to unpack existentialism’s central theses, understand their significance, and evaluate the works from a moral, political and metaphysical perspective. Among other things, we will explore why existentialism is held to be an atheist philosophy, why it resonates with Buddhism, and how it avoids charges of nihilism.

Philosophical Issues in Literature: The Legal Novel

In this class we will read several ‘legal novels’ closely to examine their particular literary take on issues of philosophical significance: What is the nature of law? Why do we obey the law? What obligations does it impose on us? Must we always obey the law? How we should interpret a legal text? What is the relationship between law and morality? What is the moral and political significance of the gap between the theory and the practice of the law? Are the pretensions of the law a sham? Is the law just an instrument of the strong to keep the weak in check? Can the law ever find the ‘truth’ in its courts? And so on.

Reading List:

I have taught both ‘Political Philosophy‘ and ‘Philosophical Issues in Literature‘ before but this semester’s syllabi are new. ‘Existentialism’ is a new venture for me. Which means that I have three new classes to teach this semester, a task intimidating and exciting in equal measure. Moreover, I have never taught Shakespeare before, so I face a particularly interesting challenge in taking that task on. (I have recommended that my students watch Sam Mendes‘ The Hollow Crown to supplement their readings of the history plays; these cinematic versions are absolutely superb and bring Shakespeare’s words and characters to life most vividly.)

Much could go wrong in the weeks ahead; but if things come off the way I’ve hoped and planned, this could be one of my best semesters of teaching here at Brooklyn College. Well then, once more into the breach, my dear friends.

Orange Is The New Black And The Privatization of Prisons

Spoilers Ahead. 

Orange is The New Black has attracted–not unjustifiedly–some flak for its powerful and painful fourth season: it has been accused of being ‘trauma porn for white people,’ and of having ‘failed the Dominican community.’ Still, the show has provided some powerful drama in those thirteen episodes, largely by throwing off any pretensions that were hoisted on it of being a ‘funny’ or ‘comedic’ look at what happens behind the walls of a modern prison, and by concentrating on those issues that are too often the stuff of contemporary headlines pertaining to mass incarceration: the privatized prison-industrial complex, the brutality of poorly trained prison guards and correctional officers, racism, violence, sexual abuse and assault, criminal activity behind bars, drug abuse, the complicated social dynamics of prisoner groups, prison protests, deaths in custody, and so on. (Orange is the New Black is set in a women’s prison, so these issues receive an interestingly different treatment because of its inclusion–even if incompletely, and often crudely–of the perspectives of lesbians and women of color. Despite its increasingly serious tone. the show retains its witty edge because of its sharp writing and because of the comedic talent of many of its actors.)

In the many indictments the show levels at our society, one stands out pretty clearly: the privatization of prisons, the transformation of incarceration into industrial endeavor. The show’s narrative and rhetorical arc in the third season was radically altered by its choice to concentrate on the privatization of Litchfield, and not coincidentally, that is precisely when the show took on its darker tone. The predominance of the economic bottom line, and the casual cruelty and indifference to human interests it brought in its wake ensured that change pretty quickly. Interestingly enough insofar as any sort of alliance between the various warring factions among the inmates ever emerges, it is in reaction to the lowering of the corporate boom on their heads: if prison administration was uncaring and callous before, then the new dollars-and-cents mentality is even more grim, ever more removed from the realities of their lives, one that demands, finally, even if only temporarily, the putting aside of differences.

As Orange is the New Black makes quite clear in its treatment of the death of Poussey–the show’s most traumatic moment thus far, the one that finally pushed it over the edge, and made clear the it was not in Kansas anymore–an innocent human being died as a result of the decisions made by those, and there were many, who chose to imprison her and her fellow inmates in the way they did. The overcrowding at Litchfield, the use of untrained guards, the tolerance of their brutality, the systematic, cruel, ignorance and indifference of corporate managers; they all applied that fatal pressure to Poussey’s windpipe; she died because a system’s weaknesses became too much for her to bear. As they have for all too many in real life. If Orange is the New Black can help us pay more attention to their fates, and to the actions that are required to ensure they are not repeated, it will have, despite some well-deserved criticism, done its part.

Bertrand Russell On Deterrence By Making ‘Freedom More Pleasant’

In ‘What I Believe,’ an essay whose content–selectively quoted–was instrumental in him having his appointment at the City College of New York revoked¹, Bertrand Russell wrote:

One other respect in which our society suffers from the theological conception of ‘sin’ is the treatment of criminals. The view that criminals are ‘wicked’ and ‘deserve’ punishment is not one which a rational morality can support….The vindictive feeling called ‘moral indignation’ is merely a form of cruelty. Suffering to the criminal can never be justified by the notion of vindictive punishment. If education combined with kindness is equally effective, it is to be preferred; still more is it to be preferred if it is more effective….the prevention of crime and the punishment of crime are two different questions; the object of causing pain to the criminal is presumably deterrent. If prisons were so humanized that a prisoner got a good education for nothing, people might commit crimes in order to qualify for entrance. No doubt prison must be less pleasant than freedom; but the best way to secure this result is to make freedom more pleasant than it sometimes is at present.

Russell was a logician, so he cannot resist making a simple logical point here: if you want prison to represent an uncomfortable alternative to ‘the world outside’ that constitutes an effective deterrent to crime, you have two choices: make prison conditions much worse, or make the state of ‘the world outside’ much better. Our reactions to the world we encounter rely on contrasts and conditioning; it took a princess used to the utter luxury of royal palaces to find the pea under the pile of mattresses unbearable; the parched wanderer in the desert finds the brackish water of a dusty oasis the sweetest nectar of all. It is not inconceivable that many who are used to endemic and grinding poverty, hunger, and violence might find prison not such a bad alternative, and find that its supposed terrors, when viewed from afar, are entirely lacking in deterrent effect. (That sad old saw about criminals committing crimes in order to get three square meals and a roof over their heads perhaps bears repeating here.)

Unsurprisingly, the vindictive and retributive mentality of societies informed at heart by the “theological conception of ‘sin’,” entirely unconcerned with the actual and effective amelioration of social ills, chooses the former of the options listed above. Moreover, the emphasis on retribution acts as a powerful distraction from clear thinking on what might have made criminals act the way they did–perhaps if ‘the world outside’ were improved, some of the causal chains leading to the commission of crime could be disrupted.

Note 1: The details of this shameful scandal and its gross violation of academic freedom  are still worth reading after all these years (especially because, as the Steven Salaita affair reminds us, academic freedom remains under assault.) Paul Edwards‘ ‘Appendix’ in Why I Am Not A Christian (Allen and Unwin, New York, 1957) contains the sordid and infuriating details. Edwards’ essay is in turn based on The Bertrand Russell Case (eds. Horace Kallen and John Dewey, Viking Press, 1941).