Alan Dershowitz
It is fundamental to a free society that its citizens be able to read the law and conform their conduct to it.
So says Alan Dershowitz, a Harvard law professor and famous lawyer, in his foreword to “Three Felonies a Day,” a new book by Harvey Silverglate. (Silverglate talks about his book at the Cato Institute in the clip below).
So this is yet another way in which simplicity, one of my recurring themes on The Hannibal Blog, is a prerequisite for freedom, another thread of mine. By contrast, complexity and vagueness, by entrapping citizens, can lead them into serfdom.
America’s founders, Dershowitz reminds us, used to say that a criminal statute had to be so clear and simple that it could be understood when read by a person “while running.” They believed that, if people struggle to understand what they are supposed to do or refrain from doing, society is no longer free in any meaningful sense of that term.
Caligula
The notorious Roman emperor Caligula also understood this, but had a different motivation. Cassius Dio (LIX, 28.8), tell us that
after enacting severe laws in regard to the taxes, he inscribed them in exceedingly small letters on a tablet which he then hung up in a high place, so that it should be read by as few as possible and that many through ignorance of what was bidden or forbidden should lay themselves liable to the penalties provided…
Another man who understood and used this insight is Lavrenti Beria, Stalin’s head of the KGB, who famously said
Show me the man and I’ll find you the crime.
The Road to American Serfdom
Is America today like Caligula’s Rome or Beria’s Soviet Union? No, at least not yet, and nobody is suggesting that it is.
But the fact that we need to spell this out should itself cause alarm. For this might be the road we’re on. (We already found that the Soviet Union during the Gulag was the only society with a higher incarceration rate than America today. This is not the sort of peer group that one wants to be compared to!)
The reason for worry is the increasing and extreme vagueness of America’s federal and state statutes. Sometimes, in addition to being vague, statutes also contradict other statutes, so that a law-abiding citizen in certain situations has no legal option to act at all! As Dershowitz writes:
The very possibility that citizens who believe they are law-abiding may, in the eyes of federal prosecutors, be committing three federal felonies each day … threatens the very foundation of our democracy…. when the executive branch, through its politically appointed prosecutors, has the power to criminalize ordinary conduct through accordion-like criminal statutes, the system of checks and balances breaks down…. [We are] … in danger of becoming a society in which prosecutors alone become judges, juries and executioners because the threat of high sentences makes it too costly for even innocent people to resist the prosecutorial pressure.
What he is referring to there is the trend among even innocent defendants today to plead guilty to “reduced” charges rather than risk a trial with draconian sentences in the event of conviction. Because that’s what American prosecutors are wont to do: to pile charges upon charges until the victim breaks down in fear, and tells prosecutors whatever they want to hear in return for a deal, so that the prosecutors can then go after another and more valuable target.
Silverglate, in his book, describes case after case of this so-called “laddering” by prosecutors. (Silverglate’s task is difficult because, by definition, the evidence is not so much in trial records but in the plea bargains that did not lead to trials.)
So let’s talk …
About American prosecutors
Unlike Beria or Caligula, they may genuinely believe that they are on the side of good rather than evil. (Technically, the congressmen who write the laws are the equivalents of Caligula; the prosecutors who manipulate the laws’ vagueness are the Berias.) As Dershowitz writes,
The men and women of zeal who use elastic criminal statutes to prosecute citizens who they believe are exploiting or endangering other citizens may in fact be doing God’s work, but they are not doing Jefferson’s work or Hamilton’s work or Madison‘s work or the work of the other founders of our secular nation and Constitution. They should leave to God (or public opinion) the punishment of immoral people who do not violate the explicit terms of criminal statutes.
America, of course, is unusual among liberal democracies in several respects:
- Its attorneys general are political appointments by the president. They have two distinct functions. One is to be loyal and trusted advisers to the president. The other, in theory, is to be impartial prosecutors. Other democracies split these two roles into two separate jobs. America does not.
- Being a prosecutor in America is very often merely a stepping stone toward higher office, such as senator or congressman or governor, so prosecutors must … win, win, win. (Remember Spitzer?) Never mind the “truth” or “justice”.
- At the state and county level, Americans often elect prosecutors and even judges. This is because they believe that democracy is always synonymous with freedom and refuse to examine this idea. In other democracies, prosecutors and judges are civil servants. In America, many of them campaign for re-election, raise money from voters, compete with each other to be “tough on crime” and so on.
As Dershowitz writes,
Our penchant for voting on everything has reached laughable proportions in Florida, where even “public defenders” must run for office. I can only imaging what the campaign must be like.
The result, of course, is a severe and growing threat to liberty. This is a non-partisan issue, neither of “the left” nor of “the right.” Americans (whether on FOX or MSNBC) must stop evoking “freedom” as a soundbite and political cudgel and start thinking about what it actually means and requires.
Watch Silverglate:
Hannibal and Me: life lessons from history 
I don’t understand how anyone thinks it’s OK that judges run for their office. Matias Iaryczower, Garrett Lewis, and Matthew Shum from CalTech studied criminal decisions from state Supreme Courts and found that “justices that are shielded from voters’ influence on average (i) have better information, (ii) are more likely to change their preconceived opinions about a case, and (iii) are more effective (make less mistakes) than their elected counterparts.” Their findings seem to agree with Silverglate’s and your worries.
There you have it. I would add, or rephase as: Judges who don’t have to run for office are more likely to consider each case just on the merits of the case, whereas judges who have to run are likely to view cases as part of campaign strategies (“could I possibly be lenient on defendant X, given his circumstances, when I have to claim that I’m tough on crime?”)
Interesting and scary. Too many laws or too many lawyers?
Probably too many laws, badly written. That leads to too many lawyers.
I believe the medical term for this condition is hyperlexis.
Too many laws, too many lawyers and too many elective offices. I’d be terrified to appear before a judge who may have heard that I voted against her or him.
Exactly. Or see above. The judge doesn’t even need to know how YOU voted. He’s thinking about his voters while administering justice to you, when he should be thinking only about you and a victim, if there is one.
To be fair, a judge should not be thinking about the victim nor about about the perpetrator until after the perpetrator is found guilty.
This is a common and ongoing debate. How do we remove inept or unfair judges from the bench?
Are appointed judges any more independent than elected ones? Wouldn’t they also be beholden to those that appointed them?
Is an appointed judge actually free of political pressure? Could a judge consider a cases based on what that might do for his/her career (future appointment)?
I think it comes down to how one views the general electorate.
I just may have committed a federal felony by omission. About a month ago I received a letter informing me that I was SUMMONED AS A TELEPHONE STANDBY JUROR FOR ALL COURTS IN QUEENS and that I was to BEGIN CALLING FRIDAY APRIL 30TH, 2010 * DO NOT REPORT ON THIS DATE * NO COURTHOUSE PARKING PROVIDED.
Aside from not quite understanding the connection between being specifically asked not to report and no parking, I forgot to call in.
This U.S. citizen thing is new to me. I don’t even know what “telephone standby juror” means. I’m supposed to call in every day now and ask if they need me, starting last Friday?
I can’t even figure this out sitting down, let alone running.
Yikes. My least favorite topic, jury duty.
I think you should have called. You probably weren’t summoned, but you may get more unpleasant mail if you were.
I could write tomes about this.
Of course I should have called. I forgot. And I wouldn’t mind jury duty. Sounds interesting, unless lengthy sequestering is involved.
I could write tomes about annoying Economist pop-up ads. I just had another one. Grrr.
The real victim of complexity is the rule of law itself. This affects not only crime, but, more importantly, those law abiding citizens, the majority, who wish to settle their differences in a civilised fashion.
There are a number of causes of increasing complexity, but I should like to name three.
First, there is the overweaning wish of our elected representatives to be seen to be doing something, a desire to demonstrate their power over the rest of us. Motivation is secondary.
Second, the excesses of specialisation among lawyers in which our judges, particularly our senior judges, are inadvertently complicit. Law is not like medicine, it is man-made. It is there to serve and if it is too remote from the inexpert it fails in its purpose.
Third, a sort of meandering ambiguity in which the law is expressed. It is the result of laziness and failure to grasp the principles and consequences adequately. Simplicity is often much harder to achieve.
Please have a look at a specific instance of the ills of complexity in non-criminal law on my blog at:
http://thecriticaline.wordpress.com/2010/01/29/a-village-green/
“Occam’s razor” is applicable here as in science – if you have more than one solution to a problem, choose the simplest. It is, perhaps, more applicable to law than to science.
Increasing complexity in the law is the mark of a civilisation in decline. I must resist the temptation to do something about it! I suppose writing about it helps a bit.
The election of judges compromises the separation of powers. Is it possible that there is more sensitivity to this in an unwritten constitution than in a written constitution that tries to spell it out? Judges are not elected in England, although I do suspect there is a political element in their appointment, but I must not say that. After appointment, they do enjoy security of tenure, which is the thing that preserves their independence. A High Court judge can only be dismissed on a resolution of both Houses of Parliament.
Well put, and I shall read you post on the subject.
Since you also, eloquently, agree that electing judges (may I assume you would also include prosecutors?), could I ask:
Does anybody here at all think that electing judges/prosecutors is not crazy?
Whether or not prosecutors should be elected depends upon the extent to which they determine the law applicable, their discretions and the checks and safeguards available for their competence and integrity.
It is analogous to the freedom to choose your own lawyer.
Electing magistrates at least prevents them from becoming the explicit agents of dominant leaders (you even mention this in your post). I would rather elect my own inquisitors than have an emperor or theocrat chose them. Or are we to have an independent self-policing judicial/prosecutorial bureaucracy with its own system of advancement (tests, patronage, seniority, or what-not)? That also seems counter to your love of simplicity….
Hieronymo, you may be forgetting that we elect our emperors and theocrats, so their appointments are mere extensions of our own choices.
Hi Hieronymo, (which of the many interesting Hieronymos in history have you named yourself after?)
Cyberquill sort of said it. But to elaborate:
Isn’t the obvious solution between tyranny and lynch-mob-rule the … representative (as opposed to direct) democracy we allegedly have?
Which is to say: We elect leaders, those leaders appoint judges, but those judges are henceforth independent from the leaders who appointed them. (see: Supreme Court, federal judges).
If we decide we don’t like the judges, we have to vote for different leaders, who then choose different judges.
But the judges must never feel they have to answer to us, the mob, on a daily basis. Otherwise, we would still have Jim Crow in the South today.
I set Cyberquill up for the witty rejoinder–that we elect our own emperors and theocrats. Cyberquill, once you muddle through jury duty in New York City hold on to your certificate! They’re not too great at keeping records.
Hieronymo is an allusion to the end of “The Wasteland” and is also meant to evoke Hieronymous Bosch (since I manufacture mix-&-match animal toys). Dealing with various regulatory and moral authorities in the modern toy industry almost makes me long for the simpler days of the rack and the bastinado.
Does anybody here at all think that electing judges/prosecutors is not crazy?
That would be me.
welcome back Douglas, hope you are feeling better.
I take it from your re-engagement that you’re feeling better. Hope you’re doing well, Douglas.
@Andreas
Better but not whole. For some odd reason, I do not bounce back as well as I did when I was in my 20’s.
American justice is for retards. One guy in Michigan gets a life sentence for a joint found in his car while one guy in California can grow that weed and supply it. How ridiculous. Not to mention that if a prosecutor decides he wants to get on the bandwagon of some spurilous cause dreamed up by the media then he/she seems to be able to charge you with any manner of charges that were never intended to apply to your particular circumstances. The law lives on the State’s side, not the individuals. That is not what the scales of justice are meant to mean. Political climate should play no part in the judge’s mind and yet it is prevalent in most judge’s decisions in America. Ex: O.J? Conrad Black? Any pro athlete?
I’d say that America’s lack of culture and history and CNN sensationalism is causing or has caused the decline of the American Dream and resulted in a society where the snake is actually eating itself. And no, i am not a Muslim.
<One guy in Michigan gets a life sentence for a joint found in his car while one guy in California can grow that weed and supply it. How ridiculous.
Well, that would certainly sound that way from your description. However, the facts say otherwise:
http://www.marijuana.com/drug-war-headline-news/135947-mi-drug-dealer-who-had-his-face-fingertips-altered-gets-life.html
“A federal judge issued a life sentenced today to a high-level drug dealer who hauled cocaine and marijuana to Detroit by the busload and traveled to Mexico to have nine plastic surgeries and his fingerprints removed to avoid identification.
After two hours of listening to Adarus Black, 38, of Detroit, complain of a conspiracy by witnesses, prosecutors and the criminal justice system to railroad him, U.S. District Judge Marianne Battani said it was Black who was part of a “gigantic drug conspiracy.”
The life sentence came after Assistant U.S. Attorney Michael Buckley told Battani that evidence at Black’s trial showed that he ordered killings; changed his appearance and dealt in millions in cocaine and marijuana.”
When the full story is revealed, we find the real reason for someone getting a life sentence.
But you do point up one problem with the US political structure as it applies to the legal system. We have jurisdictions. Federal laws, state laws, and (on occasion) city and county laws which can contradict each other. We also have over-zealous prosecutors out to get convictions.
The problem, if there really is one, would be cultural. And historical. We do actually have a history and culture, just as all nations do. It is a culture and history of open debate. It is a culture and history of change that grows from the bottom and spreads and is not dictated from the top down.
CNN sensationalism? With its “in the bottom” ratings? I don’t think so.
Just because most Americans eat up the constant repition and thorough investigation of the seemingly trivial does not mean that CNN is actually a top seller. Most cultured people would look to the BBC world news or at least some sort of balanced approach to world news.
I have personally sat in front of CNN while they are wondering whether the ship carrying the, and i quote” upside-down milkcrate” is actually moving. Are there not more significant events happening around the world? Say, for example, the E.U’s crisis? No, of course not. They give you knots on a ship instead for 23 and 1-/2 hours and then summarise the rest of the world’s events. Give me a break.
All pretty girls on site, too. Hmmm. Males you wonder about the actual quality of journalism here, no? I’m sure there are many pretty girls who can investigate good stories. But there must be some ugly ones too? Apparently not in America, where droning on endlessly about the minutaie of the same topic seems to keep the nation entranced. Can anyone explain?
@Nonlawdawg
Just because most Americans eat up the constant repition [sic] and thorough investigation of the seemingly trivial does not mean that CNN is actually a top seller.
Well, that would be due to other news networks doing much the same. It is, I believe, called “competition”.
The news networks sprung up in CNN’s once successful wake. Most have become jokes (and provide fodder for comedians) along the way.
The BBC is not a 24 hour news channel. If you prefer that sort of journalism, consider just watching the news on PBS. It’s closer in style, substance, and is also a government funded network.
I seem to be getting quite a bit about the economic problems of Greece and their effect on the world economy myself but I don’t watch CNN much anymore.
Nice rant, by the way. Though I thought I detected a bit of snobbery.
BY “CNN sensationalism” you probably mean the “crime-of-the-day” culture, which is deplorable.
For instance, right now it’s fashionable to hate Goldman Sachs. There is a civil fraud case going on, and the criminal prosecutors are said to be “sitting back to see what that case kicks up” so that they can come in with their own. Meanwhile, the whole country is baying for blood, desperate to see some rich, greedy bankers pay for the Great Recession.
There may have been crimes committed, or there may not. But every prosecutor, responding in part to media sensationalism, now wants to bring down a Goldman Sachs banker so he (the prosecutor) can later run for governor.
This all seems wrong.
@Andreas
BY “CNN sensationalism” you probably mean the “crime-of-the-day” culture, which is deplorable.
I am in my 60’s and I recall these complaints about the news for about as far back as I can recall. Originally, it was the newspapers and what they chose to splash all over the front page. With the advent of TV journalism, it continued there… in “Real Time”. As I recall, the national news shows on the regular broadcast networks were originally only 15 minutes long. If they could do a decent job then, imagine how hard it is to fill up hours of air time without being repetitious.
Very aggravating if you want to know about some other news event or story that is not sucking up air time. I try to find background on stories that interest me by perusing the internet.
Simplicity in all things, including in government, being something for which you yearn, isn’t America’s sheer size one of the main cause of complexity in America’s governance? Also, a federal system compounds complexity.
Were Caleeefornia to be an independent nation, with a centralised government, I suggest that your life would be less complex as a denizen of an independent Caleeefornia with 35 million people, than as a denizen of an America of 300 million.
Also, democracies are inherently messy. Think only about businesses. They are efficient because they are autocracies.
@Dafna
Thanks. Better but not yet back to normal… not by a long shot.
@Phil
Yes, California might be less complex if it was its own country. Except it would then need its own military (Navy, Army, Air Force, and Coast Guard), and it would have to establish bureaus/departments to handle the various functions that the federal government now deals with; banking regulation, air traffic control, immigration, border control, etc. Highway and other large projects would no longer have access to any federal funding and neither would education. Taxes would still need to be collected, much more than before within the state but they would be balanced by the removal of federal taxes.
I suspect there are a lot more things no one thinks about involved in the concept of California as a nation.
I don’t know if you ever worked for a large corporation but they can be quite inefficient. The one I worked for certainly was.
But I certainly agree that democracies are messy things. That’s what happens when you pretend the people are in charge.
C alifornia is nearly bankrupt even with federal aid. What if it was a country having to fend for itself? Another bailout à la Greek?
Good point, Phil. The federal structure of the country means that many things are duplicated or even triplicated.
For instance, we fill out two or even three tax returns: federal, state and AMT (alternative minimum tax. go figure!)
We have two court systems. Et cetera.
But it’s not so much the size (population) of a place that makes it complex as the structure. For example, California splits authority into thousands of other entities: counties, water districts, school districts, mosquito abatement boards, …..
And, this being California, each entity has officers who are elected directly!!
This complexity often means that you cannot fix anything at all. For instance, we have the Delta of the Sacramento/San Joaquin Rivers in the north, which supplies water to the south of the state. It’s broken. But we can’t do anything about it because nobody (or everybody) is in charge.
I just can’t help thinking of the film whenever I hear about “Caligula.” Andreas, do you have an opinion on the film? You really should make a teaser/trailer like this for your book 😉
I am woefully out of touch with pop culture, Dan, so I wasn’t even aware of this film till now.
Ahem. A trailer. OK, I’ll think of a trailer.
Oh my! Well if you watch it… don’t do it around any children…
Dinah says (after I read it to her aloud)
“Well said, Mr. Kluth.”