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October 14, 2009

Major media coverage of yesterday's big SCOTUS action

Thanks to How Appealing, one can find at this linkmajor stories discussing the Supreme Court's grant of cert in Jeff Skilling's appeal and at links here and here stories discussing the oral argument in the Padilla plea case and the Spisak capital case. 

The opening paragraph of Adam Liptak's New York Times story about the Padilla case capture effectively my reaction to the oral argument transcript:

Several Supreme Court justices on Tuesday appeared sympathetic to a criminal defendant who unwittingly agreed to be deported by pleading guilty to a drug crime. But the justices seemed uncertain about whether they could fashion a legal rule that would address extreme cases without causing turmoil in the criminal justice system.

October 14, 2009 at 09:12 AM | Permalink


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So, guys, what should the punishment for this crime be?


The kid is likely harmed for life. Should those who did this get a chance for a decent life, or should they be incarcerated for a very long time?

Posted by: federalist | Oct 14, 2009 10:23:13 AM

What is your point, federalist? Do you want people to say they coddle criminals and think the accused should be set free and the teen should quit whining? Do you want people to say they have no sympathy for a teen who will spend 5 months in the hospital suffering excruciating pain? Do you want people to say they don't care if the teen will literally be scarred for life?

What about this? This story is basically a police report. Give this sentence a close read:

"In my 31 years -- I always say, 'it's the most heinous crime I've ever seen,' " Lamberti told reporters Tuesday. "This one fits in that category."

While that may be true another perspective is that perhaps newspapers should start paying the police to write the news. At least then we might have some record of it. Still another perspective goes to the discussion about the publishing of criminal histories. Our host favors them, for convictions, for serious crimes. This is a serious crime but there are no convictions, and yet the story is about equal to a published police report and it and the followup stories will live on through the life of the Internet.

Notice the police do not say they will coddle at least one of the criminals that turns state's evidence. Notice there is no mention of the Constitution or the presumptions of innocence. No mention to the right to a fair trial.

The public relations department of police department are carefully trained and they are adept at spinning the stories to be pro police. When the story is about "most heinous crime" we naturally turn off any critical thought unless we put some effort into it. It's like Orwell's Two Minutes of Hate.

"And so I cannot agree to uphold a conviction which affirmatively treats newspaper participation instigated by the prosecutor as part of 'the traditional concept of the 'American way of the conduct of a trial." Such passion as the newspapers stirred in this case can be explained (apart from mere commercial exploitation of revolting crime) only as want of confidence in the orderly course of justice. To allow such use of the press by the prosecution as the California court here left undisciplined, implies either that the ascertainment of guilt cannot be left to the established processes of law or impatience with those calmer aspects of the judicial process which may not satisfy the natural, primitive popular revulsion against horrible crime but do vindicate the sober second thoughts of a community. If guilt here is clear, the dignity of the law would be best enhanced by establishing that guilt wholly through the processes of law unaided by the infusion of extraneous passion. The moral health of the community is strengthened by according even the most miserable and pathetic criminal those rights which the Constitution has designed for all." (343 U.S. 181, dissent.)

Posted by: George | Oct 14, 2009 11:52:15 AM

The issue, George, is the juxtaposition of the suffering of the victim and the possible rehabilitation of the perps. It's an important one, and I don't think that I am wrong for raising it.

Posted by: federalist | Oct 14, 2009 11:58:16 AM

I didn't say you were wrong. Emotion is useful and powerful in the debate and you used it to sidetrack the SCOTUS post away from the merits of those cases. That is legitimate and effective debate and it is just as legitimate to question it. That is why I try to fight fire with fire against propaganda. The more outlandish the propaganda, the more outlandish my post, which sometimes backfires. Since you didn't insert propaganda with your linked story, my reply was more reasoned.

Posted by: George | Oct 14, 2009 12:20:32 PM

The problem I have, federalist, is the notion of satisfaction. At the crudest level there is nothing that can be done to make the victim whole again. This is an event in his life that he will have to deal with as he may; hopefully he will be able to transcend this abuse. I understand if he does not.

As for what happens to the abusers, the criminals, that's an *entirely different matter*. I suspect it is in that assessment where we would disagree. The abusers fundamental disagreement is no longer with the victim, it's with the state, the community. The question is what should the community do about these actions and how can the community make itself whole. Since there is no objective evidence that long periods of incarceration deter crime, it seems to me that rehabilitation is the better approach. Perhaps it does not satisfy the community's short term impulse for vengeance but I believe it is the best of series of bad choices. For all it's failures, at least rehabilitation is an investment in a positive direction.

Posted by: Daniel | Oct 14, 2009 1:12:07 PM

I understand your points, Daniel. However, I must point out (and this is just a general observation, not a shot at you) that liberals (who are typically criminal-coddling, with some exceptions) always seem to whine about "privilege" and rectifying so-called unfairness. Yet, when faced with a situation where a victim of a crime can legitimately ask, "Why is it fair that my life was deliberately ruined and the ruiners will get a chance to live happy lives?", a liberal will typically say "tough".

Posted by: federalist | Oct 14, 2009 1:52:45 PM

No one says "tough" and no one is foolish enough to argue all criminal law should be abolished. Those who come back from war minus various limbs who triumph over the suffering are heroes, but conservatives do not think crime victims have that opportunity. While it is true that soldiers today volunteer, that was not always so. In other words, victims do "get a chance to live happy lives." Tell Elizabeth Smart she can't. But sentencing law and policy is founded on punishment that reflects how difficult it will be to do so. Murder is the most severe crime because any recovery is impossible.

But it is not an either/or problem. It is not either the accused should get life in prison or the victim will always suffer.

Can you think of any example where an argument in favor of rehabilitation respects and supports the victims? Is that impossible?

Posted by: George | Oct 14, 2009 2:39:07 PM

Federalist. I actually agree with you. I do support victims rights, although I think they have often been implemented in a biased way. I do think that as a community we should do more than just say tough. Even in a non-violent crime such a burglary there are still emotional and psychological issues the victim has to deal with and we frequently just toss that person back into the community unaided. There is an old saw that a conservative is just a liberal who has been mugged. I would go further and so a conservative is just a liberal who has been mugged and then been tossed aside.

Just because I think that as an objective matter there is no way to return the victim to the state he was before does not mean I think he should just be tossed aside. I regret if my prior left that impression.

Posted by: Daniel | Oct 14, 2009 3:59:51 PM

I don't think that you left that impression. I appreciate the dialogue.

Posted by: federalist | Oct 14, 2009 6:49:54 PM

"...But the justices seemed uncertain about whether they could fashion a legal rule that would address extreme cases without causing turmoil in the criminal justice system."

Wonder what it would be like to have a "supreme court" more focused on achieving justice and righting wrongs than in rescuing the "criminal justice system" from turmoil?

Posted by: John K | Oct 15, 2009 3:23:22 PM

As a criminal-coddling liberal in good standing, I'd say people of any age with the capacity to deliberately set a fellow human being on fire must be quarantined until society is persuaded nothing like it will happen again...however long that might take.

That said, I'm with George on letting the facts reveal themselves through dispassionate procedures notwithstanding SOP jury-pool-poisoning efforts by cops or prosecutors.

It's not criminals I'm interested in coddling, federalist. It's citizens accused of crimes by powerful authorities with deep pockets and no compunctions about portraying virtually every suspect as public enemy number one.

Posted by: John K | Oct 15, 2009 4:24:36 PM

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