Nominations for Best-of Popehat.com

I’m a longtime reader of Popehat.com and a big fan of popehat’s main author Ken White’s writing. From time-to-time I share specific posts with friends. Once in a while I even try to quote the site, with attribution, in spoken conversation. E.g. I often use (read: botch) this line: “There are stupid lawyers, there are bullshit artist lawyers, and there are crazy lawyers, but even crazy stupid bullshit artist lawyers sound different than non-lawyers, as a result of being dehumanized by legal education and the practice of law.” Mostly I use the line to scare young people away from law school, but sometimes I just use it to explain to family why I’m less fun to be around since law school.

Popehat has been around and updating regularly for more than a decade, so at this point it has more to offer than you have time to read, so a round-up of the best posts is called for. I haven’t read quite all of the site myself, and of course these are the best posts to my tastes, but if you don’t like it, make your own damn round-up.  So, without more ado…
Continue reading

The Collapse of American Criminal Justice

Here’s a post about The Collapse of American Criminal Justice (TCOACJ) by then-Harvard Law Professor Bill Stuntz.

Stuntz does a really great job of looking at the history and economics and politics of criminal justice, and really gets at a big piece of why the system can be so depressing. The central theme of TCOACJ is about the unexpected consequences of modern procedural protections (such as the well-known requirement that police read arrestees their rights) in the American criminal justice system. The main source of these new protections is judicial; these procedural protections are the result of the federal judiciary applying the Bill of Rights to state governments via the Fourteenth Amendment (passed in 1868), which crucially includes state police and local prosecutors. These new protections make it much more expensive to bring a prosecution against a defendant, especially a rich defendant. As a result, state legislatures have created other, more cheaply enforced categories of crimes, such as the modern drug laws where possession implies intent, and where sentencing is strict–and even nakedly disproportionate–and mandatory. The result is a system where most power resides not with judges and juries, but with police and prosecutors whose principal levers for enforcing crime are to use minor offenses as predicates for searches and seizures, and to use the threat of disproportionate sentencing to extract confessions and “flip” petty criminals into testifying against each other. And that, in turn, is why the system produces more than 90% of its jail sentences by plea deal, not trial and conviction, and helps explain why the system has been described as “The New Jim Crow” because it offers such widely disparate outcomes for poor or minority arrestees as compared to rich, white, or well-connected arrestees.

(As an aside, the application of the Bill of Rights to the states is a judicial doctrine known as “Incorporation.” Originally the Bill of Rights applied only to the federal government, but beginning with Chicago, Burlington and Quincy Railroad v. City of Chicago (1897), the Supreme Court started recognizing a doctrine that many aspects of the Bill of Rights would apply to the states because the 14th Amendment applies to the states, and because the 14th’s Due Process Clause means that anything in the original Bill of Rights which is entailed in “Due Process” will apply to the states. The incorporation of the Bill of Rights proceeded incrementally over many decades, principally in two large spurts, the first starting with Gitlow v. New York (1925), and the second including Malloy v. Hogan (1964) and Miranda v. Arizona (1966). You can read a lot more about the judicial doctrine of incorporation on Wikipedia, or make a career out of it by becoming a criminal law attorney.)

So what’s an example of a “modern procedural protection”? The simplest example of a modern procedural protection is barring use at trial of evidence extracted from a criminal defendant by force by officers of a state government. It used to be that, if state police officers beat a confession out of you, while they might be guilty of a crime, and while you might be able to bring a tort case against them, the confession you signed to get them to stop hitting you could still be used against you in a criminal trial. You can see how, in the Jim Crow south, that was a serious problem! White police officers could, and fairly commonly did, use coerced confessions from black defendants as a routine part of “investigating” crimes. A bar on compelling confessions with force is one of the most uncontroversial applications of the bill of rights to protect criminal defendants; other modern procedural protections are more controversial.

For an example of a more controversial procedural protection, consider the rule that excludes from trial physical evidence obtained by a police officer who conducts an illegal search or seizure. (Say a police officer breaks into the garage of a man the police officer unreasonably and without basis suspects of growing pot, and the officer finds a headless body and the man’s hand-written journal of the killing… how do you feel about letting that man go free?) In some cases, this rule results in manifestly guilty–and dangerous!–criminals going free. Or the rule that every person in police custody must receive a Miranda warning, informing them that they have a right to remain silent, and to speak with their attorney, and so on… would it really be so awful if police could just go right to asking questions, without first telling people under arrest that they are free to ignore the officer and not answer anything? Arguments like this are a big part of why the law around the procedural protections for criminal defendants are a controversial, and changing, area of law.

One consequence of an elaborate, controversial, and changing set of procedural protections for criminal defendants is that successfully prosecuting a case, including litigating the evidentiary motions and post-conviction motions, has become much more expensive for prosecutors. Criminal defendants with money can pay attorneys to lob dozens of different arguments in their defense, in hopes that something sticks. (A process abetted by criminal defense attorneys who charge by the hour, and who are ethically bound to zealously defend their clients.)

However, the new expense of successful prosecution–while it is a boon for rich defendants–is generally very bad news for the criminal justice system and especially for poor, minority defendants. The reason is, as some crimes have become extremely expensive to prosecute (especially against rich defendants), legislatures and prosecutors have compensated by creating and prosecuting offenses that are cheaper to prosecute, and much more likely to produce quick plea deals. And what’s the simplest way to make sure plea deals are likely? Make the sentence disproportionate, and tie the jury’s hands by removing any “criminal intent” component.

(In case there are readers who aren’t familiar with the term, here’s how a plea bargain works: A prosecutor’s office gets word from the police department that someone was arrested in connection with a crime or suspected crime. The prosecutor faces a choice of what charges to bring, and whether to offer the defendant the ability to accept a reduced sentence in exchange for pleading guilty (and thereby sparing the prosecutor’s office the expense of a trial.))

TCOACJ is great for its level of historical engagement. E.g. I had no idea criminal prosecutors were usually private hires until long after the Constitution was written. Stuntz also considers how things could have (and in other countries, actually have) gone differently, e.g. most constitutions written after ours have substantive protections written into their equivalent of the bill of rights, while ours does not. (Except for the proscription of “cruel and unusual” punishment, which our courts have interpreted into almost no proscription at all.) He also looks at the racial elements in another “tough on crime” moment in American history: the Irish immigrant experience in the decades where the potato famine caused a huge influx of Irish immigrants to the U.S. in the late 1800s.

More than 90% of sentences are plea bargains, not tried to a jury at all.

Overall, the result seems to be that the very people the modern procedural protections were intended to protect (minority defendants and poor people) are the clear losers in the new system. Sure, plea deals save money on prosecutions, but the upshot is a criminal justice “system” of police officers’ and prosecutors’ discretion, rather than a system of judges’ and juries’ discretion. Just like draft boards’ discretion tended to mean that well-off folks got out of going to ‘Nam, discretion in the U.S. is a big part of how we put 1/3 of black men between 20 and 30 in jail without the rest of us thinking there was a war going on.

But the central theme is about how legislatures have adjusted to the insane expense of excess procedural protections by creating new kinds of violations and tougher sentences for existing ones, and by disempowering judges and juries with mandatory sentencing and crimes that don’t have a “criminal intent” component, but rather merely an “intent” or even merely a “possession implies intent” component, which empowers prosecutors to bully plea bargains from defendants. The upshot is a criminal justice “system” of legislative, police, and prosecutorial discretion for newly created categories of crime, rather than a system powered by aggressive prosecution and traditional sentences for the “big five” (murder, battery, rape, arson, fraud/perjury) and judges and juries.

Stuntz also looks at electoral checks on police and prosecutors. TCOACJ looks at the parallel between the post-Potato-famine Irish communities that built electoral machines and took over city electoral politics in response to excess incarceration of Irish young men, and a similar (but less successful) effort by African American communities in response to a wave of incarceration of African American men. In both cases, the wave of incarceration was itself tightly connected to a large group of newly arrived young men without opportunity–whether young Irishmen escaping the famine, or young black Americans fleeing Jim Crow.

In which I borrow Popehat.com’s sock puppet, and attempt to explain 12(b)6 motions and crappy journalism.

(This post was created with the help of a couple of sock puppets I pre-permission borrowed from Popehat.com. I intend to put both through the washing machine once or twice, and return them before anyone over at Popehat notices they are missing.)

—————-

So! Did you hear I was proved right after all? 

I’m happy for you.

But aren’t you going to ask me what I was right about all along? 

Look, I’m kinda busy.

But this time I do understand something, and I knew it all along!  

A clock that is stuck at 5:00 is right twice a day, and when 5:00 rolls around, you could imagine the the clock saying, “I knew all along it was 5:00.” You probably are worse than the clock. Broken clocks can be fixed, but there’s no cure for stupid. So, uh, whatever it is, I don’t want to know.

Remember how I always said that the election was stolen by treason, and lots of people called me an idiot? 

See, you really could take a lesson from lots of people calling you something. They are onto something. Don’t let that make you feel lonely; lots of people are stupid. Just know that I despair of ever helping you.

Well a court just ruled that the Presidential Election was stolen.

Uh, look I would doubt a court had done that, even if it were a trusted news outlet, rather than my own sock-puppet telling me so. Anyway, whatever you were going to say a court had ruled, I’m refusing to engage with you. I don’t see a benefit to speculating wildly about an ongoing investigation into how much the Trump campaign knew about or encouraged the Russians to meddle in our election. Move along.

Yes, but look at this headline: “Court Admits DNC and Debbie Wasserman Schulz Rigged Primaries Against Sanders.”

Satan’s whiskers you’re a persistent idiot.  What part of “Move along, please” didn’t you understa—wait. You’re not even talking about Russia… You’re stuck on the primary. There is no way this is worth my time.

It’s from Observer.com, and “Observer” is an English-speaking word that sounds trustworthy, so that means it’s written by trustworthy Americans who want to give me good information, right?  

There are so many things wrong with this sentence. Please just stop. Every new thing you say just compounds the stupid. Move alo–

That’s what I was saying. It’s obviously fake news, planted by the Russians and the Koch brothers to destroy Hillary. 

God kill me there are two of you. As though one sock puppet wasn’t enough. I hope you cannibalize each other’s crusty bits and mutually choke to death.

That’s unkind. But whatever, I was just going to post this on the internet, for all my friends, so my friends that liked Hillary will know that anything bad about Trump is forever their fault for supporting her over Bernie…

And I was going to tell all my friends to boycott voting and stop reading fake news until they make Hillary Clinton chair of the DNC, and nominate Elizabeth Warren… 

Right. Blackmail me with threats to further derail civil discourse and the democratic process. I hate you both. I hope you both get stranded on a desert island with a horny teenage boy, for months. Months. Fine, I will explain to you why your understanding is about as misguided as a hungry bear humping a beehive.

Are you mixing your metaphors? Why is the bear humpin–

The point is, you’re confused about something very basic, and it’s probably going to hurt you in personal and embarrassing ways. And that I hate you. And yeah, maybe it’s a confused metaphor. You’re a sock puppet, you think you always get Shakespeare?

1. You know that the core story of the DNC emails was that a foreign power–Russia–which is effectively a dictatorship that hates freedom and the American Way, and which is currently waging low-grade war on some of its neighbors, and which is under severe sanctions from the U.S.–hacked the servers of the Democratic Party and released their emails out of context to make Bernie supporters, who would otherwise vote for Hillary as much better than Trump, stay home rather than support her on the theory that Hillary cheated. (There’s this idea that elections are over-determined, and so there are plenty of other things that, if they’d gone the other way, might have meant Hillary would have been elected. But I don’t expect sock puppets to understand that. Anyway, over-determined or not, there’s some folks in Russia who are congratulating themselves for hacking the U.S. electoral system.) Let’s just go with this: It seems like the Russian subterfuge of our election worked, and without it, Trump might not have been elected. The main questions, at this point, seem to relate to whether anyone on Trump’s campaign encouraged the Russians to do that, and whether any of them had Trump’s approval in doing so.

But her emails! All the crap we hate about Trump is Hillary’s fault–
Shut up! You’re just a woman-hater. All the crap we hate about Trump is the fault of the Bernie “bros” who didn’t show up to vote–

2. Okay sock puppets, please tone down the uncomfortable realism, that’s way too much like real, dysfunctional people. Let’s keep this cartoonish. Take a deep breath. Now re-read that paragraph up there, with the #1 before it. If you ask the Russians when they’re drunk enough to tell the truth, or the CIA or the FBI, that’s the gist of what happened. From the perspective of the Russians, it worked. From the perspective of Americans who want our elections to be immune to foreign meddling, we got played like bongos. Sucks, don’t it? The Hillary supporters/sock puppets can blame the Bernie supporters for falling for Russian meddling in our election, and not showing up, AND the Bernie supporters can blame the Hillary supporters for supporting Hillary during the primary. AND they can all blame the Never-Trumpers for being latecomers, who could have made the difference between Trump and not-Trump if they’d been louder sooner. And we can ALL blame Jim Comey and the FBI and the CIA for not ringing alarm bells about deliberate foreign intervention in our election. Everyone is to blame. SO. How’s this for an idea: we could focus on finding common ground–can Dems all agree on Trump being awful, and try to make 2018 and 2020 a little less awful than 2016?

But the headline–

The headline is wrong. Go back and read #1 and #2. I haven’t read the article, but Observer.com is hardly a quality news site, (for one, it famously likes to push a pro-Trump angle in sophisticated ways, such as by pitting Hillary and Bernie people against each other) and legal reporting is hard enough that even good journalists get it wrong all the time…

But the article block quotes the court, and it’s really pretty clear–

Fine. I will read your craptastic article, and try and explain in small words what kind of steaming turd it is. The article block quotes the court, as follows:

“In evaluating Plaintiffs’ claims at this stage, the Court assumes their allegations are true—that the DNC and Wasserman Schultz held a palpable bias in favor Clinton and sought to propel her ahead of her Democratic opponent.” 

3. You know, this is really pretty clear. But it’s really pretty clear in the opposite way you–idiot sock puppet that you are–are taking it. The court is making the stated assumption not because it is true, or even because it is likely, or even merely plausible. Rather, the court is asking the “even if” question, which courts use all the time to throw out lawsuits. Here’s how it works. Person A sues Person B by filing some paperwork with a court. Person B then asks the court to ask, “Even if all the things Person A is suing about happened, would Person A be entitled to get a court order that Person B do something, such as pay Person A money?” In lawyer-speak, this is what the court does when a party files a motion under Federal Rule of Civil Procedure 12(b)(2). 

In relevant part, Rule 12(b)(6) reads, “[A] party may assert the following defenses by motion…  failure to state a claim upon which relief can be granted.” 

Here’s an example. Say Red Sock Puppet and Blue Sock Puppet bring a law suit against a particular teenage boy, who you accuse–in a very colorfully detailed and even downright lurid court filing–of conduct directed at yourselves amounting to “an affront to the dignity of sock puppets everywhere.”

You’re gross and offensive. Are you sure you’re not a Bernie “bro”? 

Yeah, well screw you, sock puppets. You started this.

So say the teenage boy files a 12(b)(6) motion in response to your having sued him. The court will then assume that the teenage boy in question behaved exactly as you accuse him of behaving, without taking any evidence from you or even looking at the teenage boy’s version of events. The court will make this assumption for the sole purpose of determining whether or not to throw out your law suit. Since the law does not protect sock-puppets from any or all of the indignities to which socks may be used, the court would throw out the suit without ever giving the teenage boy a chance to defend himself, and somewhere in the opinion–which would probably be very short–would be a line like this, “For purposes of this state of the proceedings, the court assumes that Teenage Boy did all the untoward and deeply depraved acts which Plaintiff Sock Puppet accuses him of committing.” 

Journalists worth any spit figure out pretty quickly how completely unfair it would be to the Teenage Boy in question to publish an article under the headline, Teenage boy did untoward and deeply depraved acts to Sock Puppet. Lots of news outlets get this wrong and publish crap. Sometimes I sincerely suspect many of them–yes, including Observer.com, of deliberately misconstruing what these court rulings mean, because that way they can get a lot more eyeballs reading their news.

In conclusion, (although I’m making several inferential leaps without explaining them because I’m tired of this topic) when stupid, credulous idiot sock puppets re-post “news” about court rulings from crappy sources, you reward journalists for teaching teenage boys how to abuse sock puppets, and contribute to sock puppet misery everywhere. Repent! 

This still doesn’t make sense, and I don’t like being threatened. I still think you’re just trying to cover for Hillary and Wasserman Shulz, and I’m tired of listening to you. I’m never asking you anything again.

I think you’re a Bernie bro, so I’m done with you.  

Really that’s great. Just great. Please stay gone.

The Hidden Sources of Law School Stress & Actionable.com

For this review, I’ve cribbed the style of ActionableBooks.com, which I think is a good resource. Many books and other things I review do not lend themselves to a “golden egg” and two “gems” format, but it’s a great format for reviewing The Hidden Sources of Law School Stress, and one I’ve been meaning to take out for a spin or two.

[in the format of ActionableBooks.com]

The Hidden Sources of Law School Stress

Summary Written by: briefliteraryabandon.wordpress.com

The Hidden Sources of Law School Stress provides a framework for managing stress to prevent the harms that typically accompany too much mismanaged stress, drawn from decades of experience of both law students and law professors. Although it is aimed at law students, who famously encounter particularly high stress loads, The Hidden Sources of Law School Stress is a 16-page bare essentials practical guide to stress management with broad applicability to anyone who anticipates carrying a high stress load.

Life is filled with sources stress; stress is just the physiological response to any demand on us. Most stress is not a cause for concern because we respond to it within a healthy cycle where we expend mental energy and emotional strength and then recover through normal rest, relaxation, and other healthy routines. But not all stresses are like this; there are times when the kind and amount of stress we face overburden our normal ability to respond. Excessive or mismanaged stress can have tremendous costs, including a suite of direct symptoms, such as fatigue, anxiety, depression, and burnout, as well as a suite of costly coping mechanisms such as overeating, overspending, over-indulging in television or video games, lying, excessive drinking, and substance abuse. The prevalence of these problems is a testament to the value of preventative measures; for example, the prevalence of diagnosis-worthy anxiety disorders alone is apparently about 20% of the adult population of the U.S.

The full title is The HIdden Sources of Law School Stress: Avoiding the Mistakes that Create Unhappy and Unprofessional Lawyers. Being unhappy and unprofessional sounds, uh, bad–and that’s a bit of an understatement right? So what’s the secret?

The Golden Egg:
“Depression and other symptoms of excessive stress are all too common, so attention is necessary to maintain your health and enjoyment of life. The key is to learn to recognize the most significant and potentially harmful demands, eliminate any that you can, and moderate your response to those goals that are unavoidable.”

In other words, to manage stress, you have to pay attention to how much stress you are placing yourself under. Not all stress is a choice, but many sources of stress are completely optional–and it’s always within your control to choose how you respond to sources of stress, so no matter how stressed you are, you can choose to take the steps necessary to manage your stress. Don’t abandon common sense or stop doing the work to proactively manage your stress, and do take a regular inventory of how stressed you are feeling, and what you are stressed about.

—–

Gem #1:
“False Values Create Constant Stress”

For law students, there is a pernicious (often seemingly universal) belief that the road to happiness is through the top 10% of the class. (Actually there is not much correlation between being in the top of the law school class, and being happy.) Of course, ninety percent of law students will not be in the top 10%, so if most law students define success by being in the top 10% of the class, then even though they may all have a chance of achieving that goal, and some who may recognize they are above-average students may have some reasons to think their chances are above-average, but they’re all going to face uncertainty about their likelihood of success, and will be likely to experience a lot of anxiety if they’ve chosen to value something they can’t really control. At a broader level, instead of choosing an external goal (like being in the top 10%) students should chose internal goals, such as finding the best balance between work and relaxation to maximize their productivity, or meeting specific standards for knowing the course material. Whatever the best balance is, finding it doesn’t depend on beating other students (who, after all, may likewise be conditioning their happiness on beating other students, in ways that are fundamentally zero-sum).

The Hidden Sources of Law School Stress strongly emphasizes this point, that by valuing outcomes that are beyond our control, we expose ourselves to constant stressful uncertainty, whereas when we value finding enjoyment in our work and doing our personal best, we eliminate the stress of uncertainty. Of course, this is an old familiar truth, reflected in the familiar Serenity Prayer:

God, grant me the serenity to accept the things I cannot change,
The courage to change the things I can,
And the wisdom to know the difference.  

What’s critical though, going back to the Golden Egg, is that making this insight work to reduce stress only works if we pay attention to our goals and values, and make adjustments so we remain focused on things we can control.

—–

Gem #2: 
“Heavy work-load is not the problem.”

Basically everyone has engaged in strong, focused effort at some point in our lives, and usually with good, or even great results, such as entering a flow state, experiencing feelings of satisfaction, achievement, and self-worth, and of course, actually getting things done. In short, effort isn’t harmful; normal rest neutralizes the fatigue we might feel after hard work.

In fact, one of the warning signs we can are not managing our stress effectively is if we are feeling tense, anxious, discouraged, or depressed about your school work. That can result in avoiding work, or finding advance justifications for failure, instead of staying calm and persistent as we do our best. Tension, anxiety, depression, and so on can also cause us to adopt coping techniques, such as “blowing off steam” with excessive drinking or partying, or cause you to lie or cheat or otherwise harm our health or integrity, which in turn can be a new and major source of stress.

—–

That in turn makes a nice conclusion to this review, which is that because unhealthy stress has a tendency to spiral, it is valuable to develop a good system for preventing unhealthy stress from becoming a problem in the first place. The Hidden Sources of Law School Stress is not particularly original, but it’s a short and useful guide for managing stress.