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June 20, 2011

Recognizing that the two SCOTUS former prosecutors often disagree

Bob Barnes has this new piece in The Washington Poston Justices Alito and Sotomayor, the Supreme Court's two former prosecutors, headlined "Alito, Sotomayor give voice to court split."  Here are excerpts:

The Supreme Court’s two former prosecutors sit on opposite ends of the court’s long mahogany bench, and they take very different views of the criminal justice system.

Justices Samuel A. Alito Jr. and Sonia Sotomayor have emerged in their relatively short time on the bench as two of the court’s most outspoken members on criminal justice issues. Sometimes they speak in unison, but when they disagree they often represent the court’s ideological divide....

Jeffrey Fisher, a Stanford University law professor who frequently argues criminal cases before the Supreme Court, said it is clear that Sotomayor and Alito are the two justices who have had the closest contact with the criminal justice system.  But he speculates that those experiences have provided different perspectives.

Alito has always been a federal prosecutor, Fisher notes, “where resources run deep” and cases are more carefully constructed. He comes with the view that police work is done right and that defendants are often trying to simply “game” the system.

Sotomayor’s experience in the New York DA’s office was probably more chaotic — and closer to the kind of prosecutions the court reviews.  “She has a little more of an inkling that sometimes the system malfunctions,” he said.

Regular readers know from this recent post, which I titled "Justices Kennedy, Alito, and Sotomayor and the future of the SCOTUS docket and sentencing jurisprudence," that I have been following the criminal justice moves of these newer Justices quite closely.  And here are some other posts of note about this pair with prosecutorial pasts:

The folks at SentencingSpeak in this post set forth some astute follow-up questions to this story:

Of course, this article raises other important questions:  Why aren't there more Supreme Court justices (and federal judges) with a background in criminal defense?  Why aren't there more justices who have actually sentenced people to prison?  Should actual sentencing experience be preferred (or required) to become one of our highest judges in the land?

June 20, 2011 at 10:48 PM | Permalink


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Well, I am afraid that I have to be brutally honest. (I know that I am going to catch a lot of flak from my peers for saying the following!) At the outset, as most of us know, law is a complex field of study. However, that does not absolve us from being empathetic, or conscientious for that matter. The "real" problem is that most, if not all, attorneys (both defense and prosecuting) lack empathy. Having said that, I would also like to qualify that by stating that there ARE exceptions - yes, just exceptions, rather than a rule. Why do attorneys lack empathy? Please allow me to prologue the answer to that question with the following:

The prosecutors are always looking for a feather in the cap - be it their pictures in the papers, or on television; being lauded for their "supposed" toughness on crimes; how much "revenues" thay are generating for their departments through fines, forfeitures, and disgorgements; etc. (At bottom, they are nothing more than glory and publicity hounds and they lack conscience and guts.) In the days of yore, most prosecutors were genuinely concerned about crimes and their debilitating effects on the fabric of society, and they were mostly honorable. Nowadays, prosecutors lack diligence to thoroughly study and verify the allegations before they file a complaint, an information, or bring an indictment against defendants. (The grand-jury process is sheer farce and a joke these days; the grand juries are nothing more than marionettes and socket puppets in prosecutors' hands.) To make matters worse, today's prosecutions are based more on personal prediliections and prejudices rather than on objectivity. As everyone knows, prosecution (read: governments) lie to get their desired results regardless of the costs. The statistics of conviction rates are incredibly misleading, to put it mildly. While for isntance, the US government claims a conviction rate of 95% in criminal cases, the real question is what is their real conviction rates after trial with well-heeled defendants. (I would bet that it is FAR less than 50%.) The government (especially the Federal) has unlimited resources; and even when it seems to run out of resources, it just prints more money (literally) and continues the prosecution at the expense of taxpayers. Taxpayers are not totally blameless, either. They are so stupid and dumb that they fall for demagoguery and focus solely on short-term "putative" benefits. Then the question, why do defendants plead, as opposed to going to trial? Please read on.

Defense attorneys are no different from prosecutors. They simply seek to enrich themselves at the expense of defendants. They are always after the "billable hours" and breaking the imaginary barrier of certain dollars per hour. (I remember someone's telling me that Benjamin Civiletti - former US Attorney General - was the first one to cross $1,000/hour!) They simply go home and forget about the case - and defendants, of course - as if they are changing shirts. Legal profession seems to be the only profession that seems to lack accountability. For instance, if a person is wrongfully convicted and sentenced (wrongful convictions followed by death sentences are perhaps the worst), the most the attorneys face is disbarment - in most cases, it is just an increase in their malpractice insurance premium. Even physicians can be criminally prosecuted in certain instances of negligence. (Heck, Jack Kevorkian got sent away for a long time for "assisting" his patients in their desire to commit suicide!) I have yet to see one attorney's being tried, convicted, and sentenced for gross negligence in their defense of their clients. (The prosecutors have even more of an impenetrable shield a la sovereign immunity.) In fact, I feel that defense attorneys are also aiding and abetting defendants commit suicide by "forcing" (yes, forcing, because that literally put the fear of excessive punishment in defendants for exercising their Constitutional rights) their clients to plead guilty to what they claim to be "lesser" offenses. Furthermore, the plea-bargaining process has in effect become the norm, rather than an exception. Defense attorneys have become negotiators when they are supposed to be seasoned litigators and zealous protectors of an individual's rights. They pretty much give away the whole store just for the sake of wrapping up the case and moving onto the next case (i. e., making money). The defense has become a mass-production, assembly-line business. (Henry Ford would have been really proud.)

Now, what can empathy do? Well, for starters, it will make the attorneys put themselves in their "clients'" shoes and fight the case conscientiously. (I do agree that some cases are better pleaded, but they are few and far between. I have personally seen cases after cases, wherein the defense attorneys do such a shoddy job that the cases should have been thrown out on various factual and legal grounds.) Is empathy an intrinsic quality? I do not believe so. Empathy, I believe, is teachable and sustainable by external influence. I really do not think that we are all born with preconceived notions. Most of our beliefs are taught, anyway. Hence, can empathy also be taught? My answer to that is a resounding "Heck, yes!" Well, how does one teach attorneys empathy? We just have to follow the medical profession. If a person wants to be a lawyer, then one needs to spend some time in prison. Yes, prison! In fact, law schools can teach their courses in prisons so that the future-attorneys' time is not wasted in prison. Just as medical professionals spend time doing their "residency" in hospitals, I believe that attorneys MUST spend time in prison. The duration will have to be based on what their goal is: 6 months for paralegals; 1 year for defense attorneys; 2 years for prosecutors; 3 years for trial judges; 4 years for appellate judges; and so on. When I say prison, I do not mean the "Club Fed" camps. I really mean "penitentiary" with 23-hour lockdowns for infractions and SHU-time for major violations, etc. This will absolutely, positively teach the legal professionals the value of jail-time and concomitantly the empathy that we all "seemingly" seek!

Are Alito and Sotomayor different from each other? I do not think so at least in terms of empathy. I take it that "resources" here mean the wherewithal. In that sense, yes, Sotomayor perhaps had less resources. This may also be the reason that why the states prosecute only the more serious crimes, unlike the Feds who prosecute everyone by actually "inventing" incredibly novel offenses! (A classic example is the "Scheme or artifice to defraud", 18 USC §1346. Another one of my favorite whipping boys is the Conspiracy statute - 18 USC §371.) They both were prosecutors; one is just worse than the other; so they are both cut from the same cloth. At bottom, they are more alike than different!

Now that I have said my piece, I am ready for my punishment!

Posted by: John Marshall | Jun 21, 2011 12:56:53 PM

I'll answer the three follow up questions:

(1) Two reasons. First, defense attorneys try to advocate for people that society hates. Have fun pushing that as an asset on the Supreme Court. Second, the politicos have decided that they are going to only appoint Ivy Leaguers to the bench. Ivy Leaguers generally don't go into criminal law because they can make a lot more money in civil litigation. Get rid of the Ivy League persumption, and you'll see more criminal lawyers.

(2) Because most appointees have been Ivy League appellate judges, since they are the safe bet in our cowardly political climate. If (god forbid) a sitting trial judge is elevated, there will be cries by the other party that the nominee doesn't have enough appellate experience. Which is odd, given that many of our best Justices--on both ends of the political spectrum--had no prior judicial experience.

(3) Definitely shouldn't be required, otherwise we'll have the opposite problem on the highest bench--a bunch of criminal law types with no civil experience. It's one of the problems we have in small-town Ohio trial courts--a lot of times the judges are former prosecutors who have no idea how to conduct a civil trial (and get bored with them). For the nation's highest court, balance is good.

Posted by: Res ipsa | Jun 21, 2011 1:10:11 PM

2 out of 9 justices with criminal law experience is pretty good representation. Considering in a typical year maybe 10% of the Court's docket is criminal cases, criminal lawyers are probably overrepresented on the Court. The Court probably needs an ERISA specialist, a patent lawyer or a tax lawyer far more than it needs another prosecutor.

It would be nice to have a justice who has actually had to decide whether to sentence someone to prison, but for many reasons it would be nice to have more justices who were District Court judges instead of former federal Circuit judges.

Posted by: Paul | Jun 21, 2011 1:18:38 PM

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