ROGER WILLIAMS UNIVERSITY LAW REVIEW VOLUME ELEVEN

Transcription

ROGER WILLIAMS UNIVERSITY
LAW REVIEW
VOLUME ELEVEN
WINTER 2006
NUMBER TWO
TABLE OF CONTENTS
ARTICLES
Introduction………………………………………………………….. Bridget Longridge
Harry Potter and the Unforgiveable Curses:
Norm-formation, Inconsistency, and the Rule of
Law in the Wizarding World……………….………………….....…. Aaron Schwabach
Law and Poetry……………………………………………………..... Edward J. Eberle
& Bernhard Grossfeld
A Needed Image Makeover: Interest
Convergence and the United States’
War on Terror……………………………………….……..……….... Stephanie M. Weinstein
The Lessons of Narrative: Review of How
Lawyers Lose Their Way: A Profession Fails
its Creative Minds by Jean Stefancic and Richard Delgado……….... Arthur M. Wolfson
SYMPOSIUM
Symposium on Sentencing Rhetoric:
Competing Narratives in the
Post-Booker Era…………………………….……………….............. David M. Zlotnick
Incremental and Incendiary Rhetoric
in Sentencing after Blakely and Booker…......................…….……….Ronald F. Wright
The Racial Antecedents to Federal Sentencing
Guidelines: How Congress Judged the Judges from
Brown to Booker…….......................................................................... Naomi Murakawa
The Historical Roots of Regional Sentencing Variation.……..….….. Ian Weinstein
Toward a Due Process of Narrative: Before You
Lock My Love Away, Please Let Me Testify...................................... Stephanie Weinstein
& Arthur Wolfson
Fulfilling Booker’s Promise…………….…………..……...................Lynn Adelman
& Jon Deitrich
Indecent Standards: The Case of
U.S. versus Weldon Angelos…..……………………….................…. Eva S. Nilsen
TRANSCRIPTS
United States v. Cianci
United States v. Vasconcelos
United States v. Luna
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Introduction
To stay experimentation in things social and economic is a
grave responsibility. Denial of the right to experiment may
be fraught with serious consequences to the Nation. It is
one of the happy incidents of the federal system that a
single courageous State may, if its citizens choose, serve as
a laboratory; and try novel social and economic
experiments without risk to the rest of the country. This
Court has the power to prevent an experiment. We may
strike down the statute which embodies it on the ground
that, in our opinion, the measure is arbitrary, capricious
or unreasonable. We have power to do this, because the
due process clause has been held by the Court applicable
to matters of substantive law as well as to matters of
procedure. But in the exercise of this high power, we must
be ever on our guard, lest we erect our prejudices into legal
principles. If we would guide by the light of reason, we
must let our minds be bold.1
This edition of the Roger Williams University Law Review is
dedicated to the important area of legal scholarship known as
narrative jurisprudence. The articles that follow are as diverse as
the term “narrative,” and the related topic of the relationship
between law and storytelling, might imply.
Narrative describes a different way of looking at things. It
seeks to expose the existence of the dominant paradigm, and then
it seeks to topple it.
[It] embraces concreteness or contextualism and rejects
formalism and universalism. Thus, rules in and of
themselves do not dictate outcomes. Instead, rules
informed by reason—practical reason learned through
1. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932).
303
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304 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:303
experience—create expertise. This new form of
scholarship decries the use of analytic reasoning,
reasoning not guided by practice or experience, as secondbest.2
The legal field is an insular one. With its own set of rules,
both of conduct and of language, the legal profession lies
particularly prey to the seductive path of the status quo. It has
been done this way for so long that there appears no great reason
to change things. For this reason, there is a great lack of
introspection. There is also a tendency to fail to make observations
outside the confines of the law, to look at the causes and effects of
decisions, of arguments, of the rules that make up the great and
venerable legal cannon. And so we remain an island.
But we should not remain an island; the importance of
narrative is in its ability to coax us off of it. The American legal
profession affects the lives of every single person living in the
United States every single day. When one becomes a lawyer, one
takes an oath to uphold the Constitution of the United States of
America, and that of the state in which one takes the bar. The
oath also contains the following: “I will never reject, from any
consideration personal to myself, the cause of the defenseless, or
oppressed, or delay anyone’s cause for lucre or malice. . .” In order
to uphold that oath, a lawyer must be able to identify the cause of
the defenseless, or oppressed; this task is impossible if the lawyer
never looks inside to see what motivates him or her, and never
looks outside the profession to gain perspective on the hopes,
dreams, fears, and histories of those with whom we share space in
this country.
That said, it seems appropriate to spend just a moment
talking about our perspective. Roger Williams University School of
Law is the only law school in Rhode Island. Roger Williams, the
founder of our state and our law school’s namesake, called our
state a “lively experiment” in religious liberty, in tolerance and in
freedom. Legal narrative also represents a new and lively
experiment in the field of law and this Law Review is glad to be
part of that experiment with this edition. Richard Delgado, one of
2. Alex M. Johnson, Jr., Defending the Use of Narrative and Giving
Content to the Voice of Color: Rejecting the Imposition of Process Theory in
Legal Scholarship, 79 IOWA L. REV. 803, 813 (1994).
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INTRODUCTION
305
the leading thinkers in this area, who has written extensively and
movingly about the importance of narrative3, sums up our
perspective perfectly:
Telling stories invests texts with feeling, gives voice to
those who were taught to hide their emotions. Hearing
stories invites hearers to participate, challenging their
assumptions, jarring their complacency, lifting their
spirits, lowering their defenses. Stories are useful tools
for the underdog because they invite the listener to
suspend judgment, listen for the story’s point, and test it
against his or her own version of reality. This process is
essential in a pluralist society like ours, and it is a
practical necessity for underdogs. All movements for
change must gain the support, or at least the
understanding, of the dominant group. . .4
This edition of the Law Review is split into three distinct
sections. The first section includes a selection of articles that
employ, in one way or another, the narrative method. These
articles explore the relationship between law and storytelling,
whether these stories come from poems or the tales of Harry
Potter. The second section of the edition is comprised of articles
written by individuals who gathered at Roger Williams University
School of Law in the Fall of 2005 to participate in another lively
experiment: A Symposium on Sentencing Rhetoric: Competing
Narratives Post-Booker. The third section includes sentencing
transcripts by judges who participated in the symposium. These
transcripts illuminate how judges wrangle with the different
stories, or narratives, offered by the various “players” at a
criminal sentencing.
3. See, e.g., Richard Delgado, Legal Storytelling for Oppositionists and
Others: A Plea for Narrative, 87 MICH. L. REV. 2411 (1989) [hereinafter
Delgado, Plea for Narrative]; Richard Delgado, On Telling Stories in School:
A Reply to Farber & Sherry, 46 VAND. L. REV. 665 (1993) [hereinafter
Delgado, Reply]; Richard Delgado, Rodrigo’s Final Chronicle: Cultural Power,
the Law Reviews, and the Attack on Narrative Jurisprudence, 68 S. CAL. L.
REV. 545 (1995) [hereinafter Delgado, Rodrigo’s Final Chronicle]; Richard
Delgado & Jean Stefancic, Norms and Narratives: Can Judges Avoid Serious
Moral Error?, 69 TEX. L. REV. 1929 (1991), Richard Delgado & Jean Stefancic,
Imposition, 35 WM. & MARY L. REV. 1025 (1994).
4. Delgado, Plea for Narrative, supra note 3, at 440.
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Each in their own unique way, the articles in the first part of
the edition deal critically and fully with the issue of perspective,
and each provides an alternative way of looking at the status quo,
a counterstory to the legal majoritarian tale in a given context.5
Stephanie Weinstein’s piece examines race, a context familiar to
legal narrative, but applies its lessons to a modern context – the
post 9/11 world and the war on terrorism.6 In so doing, Weinstein
explores the darker side of audience, and the pragmatic side of
speaking to that audience. Arthur Wolfson contributes a
thoughtful book review that examines narrative as a device for
thinking about the law, and suggests that it may be used in new
and yet to be exploited ways.7 Wolfson examines, in his analysis of
Richard Delgado and Jean Stefancic’s new book, the way in which
the story of being a lawyer has become ingrained and stale, and
details ways in which creative narrative breath may be breathed
into the profession itself. Both Wolfson and Weinstein were
students of Richard Delgado and Jean Stefancic at the University
of Pittsburgh Law School, and bring a rich and varied perspective
to this edition of the Law Review.
Professors Edward Eberle and Bernhard Grossfeld contribute
a piece that gets to the very heart of what narrative is all about –
language. Within the American legal profession, lawyers use
words to achieve desired outcomes, weaving them through facts
and precedent, history and exhortation. Words are the tools of the
trade, and without them, truly, we are nothing. But do the words
used in courtrooms or in legal briefs rise to the level of poetry?
So, the question is: what about the relationship of law
and poetry? Does poetry inform law? Does law inform
poetry? These questions are worth asking and pursuing
because we as lawyers know that there is a range of
phenomena and forces that influences and drives a
culture on which law sits. The words (or ABCs) of law are
5. Arthur M. Wolfson, The Lessons of Narrative: A Review of How
Lawyers Lose Their Way: A Profession Fails its Creative Minds by Jean
Stefancic and Richard Delgado, 11 ROGER WILLIAMS U. L. REV. 431, 434-36
(2006).
6. Stephanie Weinstein, A Needed Image Makeover: Interest
Convergence and the United States’ War on Terror, 11 ROGER WILLIAMS U. L.
REV. 403 (2006).
7. See generally Wolfson, supra note 5.
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INTRODUCTION
307
just the bare statements of ideas or rules that, like the
skin of a piece of fruit, gain real meaning only from
interaction with the culture in which they operate. In
this respect, we might think of law, especially its words,
as the software which can function effectively only within
the operating system of a culture.8
Words may be the bread and butter of a lawyer, but it is only
in how they are heard that dreams are realized. We can use all of
the words in the world, but without dedicated attention to the ears
of our audience, and serious thought into why people hear things
in such different ways, the best argument will fall on deaf ears.
Aaron Schwabach provides a fascinating look at the stories
that we are telling the next generation of legal thinkers in the
United States by examining the rule of law as portrayed in the
popular series of books about the trials and tribulations of a
certain Harry Potter. In so doing, Professor Schwabach adds to
the “them” of audience, and proffers some ideas on what the next
generation is, in fact, hearing when it listens to our stories.
Indeed, by telling these stories, we tell many underlying stories.
The law of Harry’s world is important to our world for at
least two reasons. First, Harry’s world provides an
entirely constructed universe, a laboratory in which legal
thought-experiments can be conducted without real-world
consequences. Second, literature shapes law: For every
real-life model of advocacy, adjudicative, and rule-making
roles that the average first-year law student has, there
are a hundred fictional models, from Atticus Finch to,
well, Albus Dumbledore. The readers of Harry Potter will
internalize its portrayals, particularly the uncertain
quality of justice in a lawyerless society, and someday
bring them to the practice of law.9
These four articles all present us with clear and convincing
evidence of the existence of competing narratives in our world.
They exhort us to step out of the confines of the story we have
8. Edward Eberle & Bernhard Grossfeld, Law and Poetry, 11 ROGER
WILLIAMS U. L. REV. 353, 354 (2006).
9. Aaron Schwabach, Harry Potter and the Unforgivable Curses: Normformation, Inconsistency, and the Rule of Law in the Wizarding World, 11
ROGER WILLIAMS U. L. REV. 309, 310-11 (2006) (internal citations omitted).
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always been told. They encourage us to examine our own stories,
to examine where that has brought us, and where it should bring
us in the future.
In the second portion of the edition, those participants who
generously contributed their time, their voices and their
perspectives to a unique examination of the vitally important topic
of criminal sentencing contribute their written work. Professor Ian
Weinstein, in relaying his own history and perspective to the
reader as a backdrop against which to understand his point of
view said this:
I sought every chink and groove in the seemingly smooth
edifice of the Guidelines and asked every judge in front of
whom I appeared to release a bit of the now dammed up
waters of discretion to bathe each of my clients in the cool
waters of mitigation. Many were happy to release a
trickle and often, at least in the beginning, we splashed
around a good deal at sentencing.10
It seems to speak almost wistfully of a bygone era when the
conversation was robust and the lines of communication open. The
symposium was aimed, at least in part, at starting that
conversation up again, as is this edition as a whole.11 Indeed, we
all have historical roots, and we have perspectives and stories of
our own that we bring to any table at which we sit. This edition is
a small contribution to the growing body of scholarship that
recognizes, and in fact celebrates, this important shift away from
the mentality of the island that has for far too long plagued the
legal profession.
Bridget Longridge*
10. Ian Weinstein, The Historical Roots of Sentencing Variation 11
ROGER WILLIAMS U. L. REV. 495, 496 (2006).
11. Please see the introduction to the symposium written by Professor
David Zlotnick for some real insight into the experience of attending the
symposium, and to get a sense of just how important it was to gather these
voices together. David Zlotnick, Symposium on Sentencing Rhetoric:
Competing Narratives in the Post-Booker Era, 11 ROGER WILLIAMS U. L. REV.
449 (2006). A lively experiment, indeed.
* Executive Articles Editor, Roger Williams University Law Review;
J.D., Roger Williams University School of Law (anticipated, 2006); B.A.,
Social Thought and Political Economy, University of Massachusetts at
Amherst (2001).
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Articles
Harry Potter and the
Unforgivable Curses:
Norm-formation, Inconsistency,
and the Rule of Law in the
Wizarding World
†
Aaron Schwabach
I. INTRODUCTION
The Big Thing in popular literature in the 1980s and the early
1990s was cyberpunk, and academics loved it:1 Neuromancer2 was
dark. It was serious. It dripped Weltschmerz from every page.
But the essential nihilism of the genre, so delightful to cultural
scholars, offered little for lawyers.
No one could have predicted, back then, that the Next Big
†
Professor of Law, Thomas Jefferson School of Law. J.D., 1989, Boalt
Hall; B.A., 1985, Antioch College, aarons@tjsl.edu. I’d like to thank my
daughters Veronica and Jessica Schwabach, my sisters Karen and Jennifer
Schwabach, and my wife Qienyuan Zhou for their patience with this project
and many long discussions on arcane points of Potter lore, and I’d especially
like to thank Jeffrey Thomas for coming up with the whole mad scheme in
the first place and seeing it through. Harry himself couldn’t have been more
dedicated. © Aaron Schwabach. Readers of this article may copy it without
the owner’s permission, if the author and publisher are acknowledged in the
copy and copy is used for educational, not-for-profit purposes.
1. See, e.g., FREDRIC JAMESON, POSTMODERNISM: OR, THE CULTURAL LOGIC
OF LATE CAPITALISM 419 n.1 (1991).
2. WILLIAM GIBSON, NEUROMANCER (1984).
309
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Thing would be a skinny eleven-year-old English kid with glasses.
But Harry Potter has reached more readers, more deeply, than
any fictional character in modern literary history; his world is
familiar to hundreds of millions of people in every part of our
Muggle world, and Harry Potter has sparked a renaissance in
children’s literature, especially children’s fantasy literature.
For legal scholars this is good news. Harry’s story is a story
about law. Harry’s world is governed by a detailed and deeply
flawed legal regime.3 Law, laws and legal structures appear in
nearly every chapter.
Conflicts and imperfections abound,
providing Harry and his companions with the opportunity to
ponder moral choices and readers with the opportunity to ponder
the nature of law. For millions of readers, especially younger
readers, the legal regime of Harry’s world will form expectations
about legal regimes in Mugglespace. These readers have created
an entire body of secondary and interpretive texts, mostly online,
to discuss these and other issues;4 this article is my own small
contribution. While the article is deeply critical of the legal
regime of the wizarding world, this is not one of those articles,
written either by snobbish academics who miss their cyberpunk or
by intolerant prudes who haven’t actually read any of the books,
bashing Harry Potter. If you like Harry Potter, I hope you’ll like
the article.5 If you don’t like Harry Potter, go away and read
something else.
The law of Harry’s world is important to our world for at least
two reasons. First, Harry’s world provides an entirely constructed
3. On this regime and its flaws, see generally Susan Hall, Harry Potter
and the Rule of Law: The Central Weakness of Legal Concepts in the Wizard
World, in READING HARRY POTTER: CRITICAL ESSAYS 147 (Giselle Liza Anatol
ed., 2003).
4. See, e.g., The Akashic Record, http://www.m5p.com/%7Epravn/hp/
index.html; Dark Mark, http://www.darkmark.com/c.c?l=home&t=The%20
Daily%20Prophet;
Enchanted
Socks,
http://www.harrypotter.magicalmystical-diamond.co.uk/; Fiction Alley, http://www.astronomytower.org/; The
Harry Potter Automatic News Aggregator, www.hpana.com; Harry Potter for
Grown-Ups, http://groups.yahoo.com/group/HPforGrownups/; The Harry
Potter Lexicon, http://www.hp-lexicon.org/; The Pensieve, http://www.thepensieve.org/; Schnoogle.com, http://www.schnoogle.com/; The Three
Broomsticks, http://frogmorton4.tripod.com/ (last visited Nov. 21, 2005). In
addition to traditional commentary, the sites contain filk, fanfic, slash, and
other derivative works, including a genre that has provided the English
language’s worst recent new word and concept, Weasleycest.
5. If you haven’t read the books yet, what are you waiting for?
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2006]HARRY POTTER AND THE UNFORGIVABLE CURSES311
universe, a laboratory in which legal thought-experiments can be
conducted without real-world consequences. Second, literature
shapes law:6 For every real-life model of advocacy, adjudicative,
and rule-making roles that the average first-year law student has,
there are a hundred fictional models, from Atticus Finch to, well,
Albus Dumbledore. The readers of Harry Potter will internalize
its portrayals, particularly the uncertain quality of justice in a
lawyerless society, and someday bring them to the practice of law.
This article focuses on one particular inconsistency, or
apparent inconsistency, in the legal regime governing the British
wizarding world: the Unforgivable Curses, the use of which on
humans is absolutely prohibited by the law of the wizarding
world. The three Unforgivable Curses are the Cruciatus Curse,
which causes unbearable pain; the Imperius Curse, which allows
the user to control the actions of the victim; and the Killing Curse,
which causes instant death. The use of any of these curses on a
human being is punishable by life imprisonment in Azkaban, the
exceptionally grim wizards’ prison.7 Yet there are inconsistencies
both in the application of this law and in the selection of certain
curses as Unforgivable.
Why has the wizarding world chosen to outlaw certain spells
and not others? What values do these choices reflect, both for
Harry’s world and for ours? What does it mean for a society to
choose to punish some offenses more seriously than others, or not
to punish at all? The same question is often asked in our world:
Why, for example, are minor drug offenses punished more harshly
than crimes considered by many to be more serious?8 The most
6. See generally, e.g., RICHARD H. WEISBERG, THE FAILURE OF THE WORD:
THE PROTAGONIST AS LAWYER IN MODERN FICTION (1984). There is ongoing
pressure within the law and literature movement to focus more attention on
works from outside the canon, new or old. See, e.g., Elizabeth Villiers
Gemmette, Law and Literature: Joining the Class Action, 29 VAL. U. L. REV.
665, 692 (1995). Surely children’s literature, traditionally ignored by
academics of all political leanings, is especially worthy of attention, as by its
very nature it will have a greater influence on its intended audience’s
worldview than will books read by adults. See, e.g., William P. MacNeil,
“Kidlit” as “Law-and-Lit”: Harry Potter and the Scales of Justice, 14 L. & LIT.
545 (2002).
7. J.K. ROWLING, HARRY POTTER AND THE GOBLET OF FIRE 217 (2000)
[hereinafter GOBLET OF FIRE].
8. See, e.g., Margaret P. Spencer, Sentencing Drug Offenders: The
Incarceration Addiction, 40 VILL. L. REV. 335, 381 (1995); Judge Stanley
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extreme penalties wizarding law has to offer–the Dementor’s Kiss
and life imprisonment in Azkaban–are handed out arbitrarily. In
spite, or perhaps because of, this arbitrariness, the denizens of the
wizarding world seem to ignore or violate the law quite a bit.
This article attempts to explore, and perhaps answer, some of
these questions. It looks at the Unforgivable Curses and their
Forgivable companions, the Dementor’s Kiss and the Memory
Charm, and examines the legal treatment of these spells under
the Ministry’s regime as well as under relevant British (Muggle)
and international law.
II. THE UNFORGIVABLE CURSES
Barty Crouch Jr., a Death Eater impersonating former Auror
Mad-Eye Moody, explains and demonstrates the nature and
illegality of the three Unforgivable Curses to Harry Potter’s
fourth-year Defense Against the Dark Arts class, and thus to the
reader. Crouch first demonstrates the Curses on three spiders,
although one spider would have sufficed.9
Crouch comments that the Ministry doesn’t want him to
demonstrate the curses until the sixth year.10 This is interesting
for a couple of reasons: It shows that the educational use of these
curses, on spiders or perhaps other small animals, is not
absolutely prohibited, and it suggests that Dumbledore has
authority to override the Ministry’s guidelines as to when the
Unforgivable Curses should be taught. Crouch might be lying, of
course, but it seems more likely that he’s telling the truth. He is
teaching at Hogwarts in order to carry out an unnecessarily
complex plan to revive Lord Voldemort, and his success depends
on not being detected as an impostor.11 If he were to lie about
Sporkin & Congressman Asa Hutchinson, Debate: Mandatory Minimums in
Drug Sentencing: A Valuable Weapon in the War on Drugs or a Handcuff on
Judicial Discretion?, 36 AM. CRIM. L. REV. 1279, 1299 (1999).
9. Crouch is actually a good teacher. It is a common enough fictional
conceit, no doubt frustrating to many professional teachers, that persons
thrown into the role with no prior training or experience, like John Kimble
(Arnold Schwarzenegger) in KINDERGARTEN COP (Universal 1990), turn out to
be better teachers than many who have devoted their entire adult lives to the
profession.
10. GOBLET OF FIRE, supra note 7, at 211.
11. Lord Voldemort, as if you didn’t know, is the arch-villain of the series.
His revival requires a small quantity of Harry’s blood; to this end Crouch
arranges for Harry to enter and win the Triwizard Tournament, a year-long
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something that could so easily be checked, someone–probably
Hermione Granger–might catch him in the lie.
1. The Cruciatus Curse
Barty Crouch Jr. has first-hand knowledge of the
Unforgivable Curses and their legal penalties: He is a Death Eater
sentenced to life in Azkaban for use of the Cruciatus Curse. He
demonstrates this curse for the students:
Moody raised his wand again, pointed it at the spider,
and muttered, “Crucio!”
At once, the spider’s legs bent in upon its body; it rolled
over and began to twitch horribly, rocking from side to
side. No sound came from it, but Harry was sure that if it
could have given voice, it would have been screaming.
***
“Pain,” said Moody softly. You don’t need thumbscrews or
knives to torture someone if you can perform the
Cruciatus Curse. . . That one was very popular once too.12
The Cruciatus Curse presents the easiest case for
Unforgivability: Torture is universally recognized as a crime,13
and there is no legitimate use for a curse that does nothing other
than cause pain and, in some cases, insanity. Crouch was
imprisoned for using the Curse to torture Frank and Alice
Longbottom, the parents of Harry’s friend Neville. Fifteen years
later the Longbottoms remain institutionalized, with no hope of
recovery. Harry and his friends meet them, in one of the series’
competition, so that at the end he may touch the Triwizard Cup, which
Crouch has turned into a Portkey and which will transport Harry to the
graveyard where Voldemort’s father’s body (another necessary component of
the revival spell) is buried. Throughout the year Crouch has ample
opportunity to render Harry unconscious and extract his blood or kidnap him,
or simply turn some everyday object into a Portkey and trick Harry into
touching it. The reason why he does not take this simpler route may,
perhaps, be explained in the final volume.
12. GOBLET OF FIRE, supra note 7, at 214-15.
13. The United Kingdom is a party to numerous treaties forbidding
torture, including the European Convention for the Prevention of Torture and
Inhuman or Degrading Treatment, Nov. 26, 1987, Europ. T.S. No. 126. See
infra notes 155-64, and accompanying text.
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most emotionally affecting scenes, while visiting their former
professor Gilderoy Lockhart, also institutionalized.14 Frank and
Alice Longbottom are barely able to communicate with, let alone
relate to, their son Neville or his grandmother, Frank’s mother.
Neville’s mother attempts to reach him by giving him bubble gum
wrappers.15
The Cruciatus Curse also provides disturbing insights into
Harry’s character and his links to the Dark Side. Harry wishes
that “he knew how to do the Cruciatus Curse . . . he’d have Snape
flat on his back like that spider, jerking and twitching . . . “16
Later, after Bellatrix Lestrange kills Sirius Black, Harry pursues
her and, catching up with her, actually uses the curse: “Bellatrix
screamed. The spell had knocked her off her feet, but she did not
writhe and shriek with pain as Neville had – she was already on
her feet again, breathless, no longer laughing.”17
No one except Bellatrix witnesses Harry’s use of the curse, so
he is spared a life sentence in Azkaban – but it’s interesting that
he chose that particular curse rather than one that would have
rendered her unconscious or, for that matter, killed her.18 This
parallels his reaction to Malfoy’s insults after he defeats Malfoy at
Quidditch:
He had completely forgotten the fact that all the teachers
were watching: All he wanted to do was cause Malfoy as
much pain as possible. With no time to draw out his
wand, he merely drew back the fist clutching the Snitch
and sank it as hard as possible into Malfoy’s
14. See infra notes 93-98, and accompanying text.
15. J.K. ROWLING, HARRY POTTER AND THE ORDER OF THE PHOENIX 512-15
(2003) [hereinafter ORDER OF THE PHOENIX].
16. GOBLET OF FIRE, supra note 7, at 300 (ellipses in original). He also
attempts to use the curse on Severus Snape after Snape kills Dumbledore. J.
K. ROWLING, HARRY POTTER AND THE HALF-BLOOD PRINCE 602 (2005)
[hereinafter HALF-BLOOD PRINCE].
17. ORDER OF THE PHOENIX, supra note 15, at 810.
18. The same is true of his attempt to use the Cruciatus Curse on the
fleeing Snape. See supra note 16. In both cases he is motivated more by a
desire to punish the murderer than to prevent him or her from escaping (thus
preventing future crimes). See generally MICHEL FOUCAULT, DISCIPLINE AND
PUNISH: THE BIRTH OF THE PRISON 129-31 (Alan Sheridan trans., 2d ed. 1995)
(1977); Erik Luna, Punishment Theory, Holism, and the Procedural Concept
of Restorative Justice, 2003 UTAH L. REV. 205, 216 (2003).
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stomach . . . .19
The Cruciatus Curse presents the easiest case in legal terms,
but an especially difficult moral question for young readers: If
Harry uses the curse, knowing that it is both wrong and illegal, is
Harry still good? And if he’s flawed–if he has a touch of evil in his
personality–is it still okay to root for him?
2. The Imperius Curse
The Imperius Curse subordinates the will of its victim to the
will of the attacker:
Moody20 jerked his wand, and the spider rose on to two of
its hind legs and went into what was unmistakably a tap
dance.
Everyone was laughing – everyone except Moody.
“Think it’s funny, do you?” he growled.
would you, if I did it to you?”
“You’d like it,
The laughter died away almost instantly.
“Total control,” said Moody quietly as the spider balled
itself up and began to roll over and over. “I could make it
jump out of the window, drown itself, throw itself down
one of your throats . . . .”21
Crouch also subjects each of the students in turn to the
Imperius Curse; although this is a use on a fellow human being,
apparently either Crouch as a Hogwarts professor or at least
Dumbledore as Hogwarts headmaster has the authority to
authorize this use of the curse for educational purposes–or else
Dumbledore has chosen to disregard wizarding law on a
fundamental matter:
But – but you said it’s illegal, Professor,” said Hermione
uncertainly as Moody cleared away the desks with a
sweep of his wand, leaving a large clear space in the
20. Actually Crouch, but Harry, the viewpoint character, doesn’t know
this yet.
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middle of the room. “You said – to use it against another
human was –”
“Dumbledore wants you taught what it feels like,” said
Moody, his magical eye swiveling onto Hermione and
fixing her with an eerie, unblinking stare.22
Again, Crouch might be lying, but given the danger to his
plan such lying would entail, it seems more likely that
Dumbledore actually has agreed to Moody’s demonstration of the
Curse. It becomes clear later, however, that the Ministry was not
informed of this in advance and would not have approved had it
known: “It is my understanding that my predecessor not only
performed illegal curses in front of you, he actually performed
them on you[.]”23
It turns out that the Imperius Curse, unlike the Killing Curse
and, apparently, the Cruciatus Curse, can be overcome–but not by
everyone. There’s a disturbing subtextual message here, too–
some wizards’ wills may be stronger than others’.
The Curse is not completely effective on Harry the first time
Crouch uses it, and by the end of a single class session he is able
to resist it completely.24 Later, he successfully resists the Curse
when Voldemort uses it against him.25 Barty Crouch Sr., also
placed under the Imperius Curse by Voldemort,26 eventually
manages to escape.27 But Broderick Bode, a Ministry employee,
struggles unsuccessfully against an Imperius Curse placed on him
by Lucius Malfoy.28 An unsuccessful Imperius Curse apparently
has the potential to do lasting harm: When the brains of a Muggle
named Herbert Chorley are addled by “a poorly performed
Imperius Curse,” the Muggle Prime Minister asks Fudge’s
replacement as Minister of Magic, Rufus Scrimgeour, “He’ll be all
22. Id. at 230; see also Lana A. Whited & M. Katherine Grimes, What
Would Harry Do? J.K. Rowling and Lawrence Kohlberg’s Theories of Moral
Development, in THE IVORY TOWER AND HARRY POTTER: PERSPECTIVES ON A
LITERARY PHENOMENON 182, 194 (Lana A. Whited ed., 2002).
23. ORDER OF THE PHOENIX, supra note 15, at 243 (Dolores Umbridge)
(emphasis in original).
25. Id. at 661.
26. Id. at 688.
27. Id. at 690.
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right, won’t he?” Scrimgeour responds with a shrug.29
The Ministry’s preference, at least while Fudge is Minister,
would be to have Defense Against the Dark Arts taught as an
entirely theoretical subject.
During the year that Dolores
Umbridge, a Ministry stooge, teaches the course, her course aims
are:
Understanding the principles underlying defensive magic.
Learning to recognize situations in which defensive magic can
legally be used.
Placing the use of defensive magic in a context for practical
use.30
The moral logic behind the Unforgivability of the Imperius
Curse is equally straightforward, but it exposes one of the internal
moral and legal contradictions of the Ministry of Magic’s legal
regime. It comes as no surprise to anyone familiar with the
wizarding world that the Ministry is incompetent, unjust, corrupt,
and occasionally brutal, and these problems have been addressed
elsewhere.31 The question remains, however, what logic underlies
the classification of these three curses as Unforgivable and the
exclusion of two others, the Memory Charm and the Dementor’s
Kiss, from that classification.
The Imperius Curse is an offense against free will; it enslaves
the victim, and enslavement is universally recognized as a crime32
and has been illegal in England for centuries.33 The Ministry,
however, openly tolerates the enslavement of house-elves.34
29. HALF-BLOOD PRINCE, supra note 16, at 17-18.
30. ORDER OF THE PHOENIX, supra note 15, at 240 (Dolores Umbridge).
Alas, Professor Umbridge’s preferred text, WILBERT SLINKHARD’S DEFENSIVE
MAGICAL THEORY, is unavailable to Muggles; it would have made this article
much easier to write.
31. See, e.g., Benjamin Barton, Harry Potter and the Half-Crazed
Bureaucracy, 104 MICH. L. REV. ___ (forthcoming 2006); Jeffrey E. Thomas et
al., Harry Potter and the Law, 12 TEX. WESLEYAN L. REV. ___ (forthcoming
2006); Paul R. Joseph & Lynn E. Wolf, The Law in Harry Potter: A System
Not Even a Muggle Could Love, 34 U. TOLEDO L. REV. 193, 195-96 (2003);
MacNeil, supra note 6, at 549-50; Hall, supra note 3.
32. See, e.g., International Covenant on Civil and Political Rights, art. 8,
Mar. 23, 1976.
33. See Sommersett v. Stuart, 20 How. St. Tr. 1, 81 (granting a slave
habeas relief because slavery was not recognized in England).
34. Much has been written elsewhere about the house-elves, whose plight
and narrative treatment present one of the most disturbing aspects of the
wizarding world. See, e.g., Farah Mendlesohn, Crowning the King: Harry
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Although the characters are often moved by factors beyond
their control or knowledge, free will is sacred in Harry’s universe
(except, perhaps, for house-elves). Dumbledore says “It is our
choices, Harry, that show what we truly are[.]”35 Yet Dumbledore,
too, makes either a conscious or an unconscious exception for
house-elves: “‘Kreacher is what he has been made by wizards,
Harry,’” said Dumbledore. ‘Yes, he is to be pitied. His existence
has been as miserable as your friend Dobby’s.’”36 This seems to
undermine Dumbledore’s earlier assertion. Dobby, after all, has
not chosen to harm anyone, while Kreacher has chosen to ally
himself with Death Eaters, to injure Buckbeak, and to betray
Sirius to his death.37 To blame wizarding society for Kreacher’s
crimes seems to deny the validity of his choices.
3. The Killing Curse
The third of the Unforgivable Curses, and the least convincing
in its Unforgivability, is the Killing Curse: “Avada Kedavra!”
Moody roared. There was a flash of blinding green light and a
rushing sound, as though a vast, invisible something was soaring
through the air–instantaneously the spider rolled over onto its
back, unmarked, but unmistakably dead.”38
It’s less clear what makes Avada Kedavra Unforgivable. The
illegality of murder is, of course, even more widely recognized
than the illegality of torture and enslavement. But not all killings
are murder, and the wizarding world apparently acknowledges the
Potter and the Construction of Authority, in THE IVORY TOWER AND HARRY
POTTER: PERSPECTIVES ON A LITERARY PHENOMENON 159, 181 (Lana A. Whited
ed. 2004). The apparent consent of most house-elves to their enslavement
leads to further moral complexity. Harry tricks Lucius Malfoy into freeing
Dobby the house-elf, but Dobby wants to be freed. When Hermione tries to
trick house-elves into accepting clothes she’s made, thereby (perhaps)
becoming free, Ron is appalled. ORDER OF THE PHOENIX, supra note 15, at 255.
Ron is wrong about many things, including house-elves, but in this case it’s
hard not to feel that he has a point: It’s one thing to offer freedom to those
who want it, and quite another to trick those who do not want it into taking it
anyway. (Of course, Hermione is not the master of Hogwarts’ house-elves,
and may not be able to free them.)
35. J.K. ROWLING, HARRY POTTER AND THE CHAMBER OF SECRETS 333
(1998) [hereinafter CHAMBER OF SECRETS].
36. ORDER OF THE PHOENIX, supra note 15, at 832 (Albus Dumbledore).
37. The free will of house-elves is subtly emphasized by the ability of
both Dobby and Kreacher to work against their masters’ interests.
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legality of some killings.39 The Ministry’s Aurors kill on occasion;
their ultimate goal is “to find and kill Voldemort.”40 The real MadEye Moody makes a wry comment to Dumbledore regarding
Moody’s part in killing a Death Eater named Rosier,41 and other
Aurors apparently rack up an even higher body count than the
sinister Moody: Harry’s godfather Sirius Black (an escapee from
Azkaban, where he had been sent by Barty Crouch Sr. for murder,
without a trial42) tells Harry that Moody, in apparent contrast to
some other Aurors, “never killed if he could help it.”43 In passing,
Sirius also mentions another Death Eater, Wilkes, being killed by
Aurors,44 and Ron tells Harry that “loads [of giants] got
themselves killed by Aurors.”45
Sirius, Moody and Ron do not explain how the Aurors killed
these giants and Death Eaters. Perhaps they are licensed by the
Ministry to use the Killing Curse, in an analogue of 007’s “license
to kill” in the regrettable James Bond fantasies. This seems
unlikely, though; if they were permitted to do so, surely the
Aurors Kingsley Shacklebolt and Nymphadora Tonks would have
used the curse in their battle with a large group of Death Eaters
near the end of the fifth volume.46
There are many other ways to kill people; the Death Eater
Peter Pettigrew manages to kill a dozen Muggles with a single
curse by causing an explosion.47 A wizard named Benjy Fenwick
“copped it too, we only ever found bits of him. . .”48 Whatever
killed Benjy Fenwick, it wasn’t the Killing Curse, which leaves its
39. In addition to the killings described here, the Ministry also imposes
the death penalty on magical beasts and uses the Dementor’s Kiss on magical
beings. See infra notes 63-82 and accompanying text. The lives of houseelves may apparently be terminated at the whim of their masters. See infra
note 82.
40. HALF-BLOOD PRINCE, supra note 16, at 104.
42. Id. at 526.
43. Id. at 532.
44. Id. at 531.
45. Id. at 430.
46. ORDER OF THE PHOENIX, supra note 15, at 801-03.
47. J.K. ROWLING, HARRY POTTER AND THE PRISONER OF AZKABAN 208, 363
(1999) [hereinafter PRISONER OF AZKABAN].
48. ORDER OF THE PHOENIX, supra note 15, at 174 (Mad-Eye Moody)
(ellipses in original).
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victims “unmarked, but unmistakably dead.”49 Giants kill each
other by purely physical means,50 and centaurs use bows and
arrows that do not appear to be magical.51 At the age of thirteen,
Harry threatens to kill Sirius Black, a threat that everyone,
including Black, seems to find credible.52 In Harry’s first year at
Hogwarts Professor Quirrell tries to kill him by casting a spell on
his broom, hoping that Harry will fall off.53 Hermione, as a firstyear student, is able to set Snape’s clothes on fire.54 Devil’s Snare,
a magical plant that strangles its victims, can be used for murder:
It endangers Harry, Ron and Hermione in their first year,55 and,
disguised as a gift, is successfully used to murder Broderick Bode
in the Closed Ward at St. Mungo’s.56 Magical creatures, like
Salazar Slytherin’s basilisk, can be used to kill.57 A snake
possessed by Voldemort bites and nearly kills Arthur Weasley.58
Sirius Black is apparently killed when an otherwise non-lethal
spell knocks him through the veil of death in the Department of
50. See, e.g., ORDER OF THE PHOENIX, supra note 15, at 430.
51. Id. at 759.
52. PRISONER OF AZKABAN, supra note 47, at 341-43.
53. HARRY POTTER AND THE SORCERER’S STONE 189-91, 288-89 (1997)
[hereinafter SORCERER’S STONE]. Quirrell’s plan fails first because Snape
utters a countercurse, and then because Hermione knocks Quirrell over while
rushing to set Snape on fire, believing that Snape is the one bewitching
Harry’s broom. Snape-watchers may wonder why Snape did not later inform
Dumbledore that Quirrell had tried to kill a student – surely grounds for
termination even by Dumbledore’s rather lax standards. In fact, nearly all of
Harry’s Defense Against the Dark Arts teachers make attempts to kill or
seriously harm him; in addition to Quirrell’s murder attempt, Professor
Lockhart tries to erase his memories, Professor Lupin (as a wolf) tries to
attack the group of which Harry is a part, Barty Crouch Jr. (as Professor
Moody) turns Harry over to Voldemort, and Professor Umbridge (before
classes begin) sends two dementors to Little Whinging to attack Harry.
Snape himself is the significant exception; when Harry attacks him after
Snape has killed Dumbledore, Snape seems to go to some effort to avoid
harming Harry, giving rise to much online speculation as to whose side
Snape is actually on.
54. Id. at 191. Even a less-skilled wizard than Snape could probably
have dealt with this danger by performing a Flame Freezing Charm (see infra
note 132, and accompanying text), but Hermione’s flame is potentially lethal.
55. Id. at 277.
57. CHAMBER OF SECRETS, supra note 35, at 317-20.
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Mysteries.59
The focus in determining the illegality of killing another
human being is not on the mens rea as it is in the Muggle world,
but rather on the method employed.60 There is some sense to
this. At common law and in many jurisdictions today, murder
committed in certain ways, such as by the use of bombs or poison,
is treated as first-degree murder regardless of intent or mens rea.
In California, for example, murder committed by explosive device
is first-degree murder61 and carries a mandatory sentence of
either death or life without parole.62 Certain instrumentalities
are deemed too dangerous. The Killing Curse may be banned for
the same reason bombs are banned: not because it can kill, but
because, for those able to use it, it makes killing too easy.
However, there is considerable evidence that the Killing Curse is
difficult to use. Barty Crouch Jr. tells Harry’s class that “Avada
Kedavra’s a curse that needs a powerful bit of magic behind it–you
could all get your wands out now and say the words, and I doubt
I’d get so much as a nosebleed.”63
59. Id. at 805-06. There is some ambiguity as to whether Sirius dies
because he falls through the veil, or falls through the veil because he is dead.
Whichever is the case, though, his killer (his cousin Bellatrix Lestrange) did
not use the Killing Curse.
60. See generally, e.g., Hall, supra note 3. Certain affirmative defenses
may be accepted, however: Lupin tells Harry that “The law’s on your side. . .
Even underage wizards are allowed to use magic in life-threatening
situations.” ORDER OF THE PHOENIX, supra note 16, at 123 (Remus Lupin).
And Barty Crouch Jr. tells Harry’s class that “Years back, there were a lot of
witches and wizards being controlled by the Imperius Curse. . . Some job for
the Ministry, trying to sort out who was being forced to act, and who was
acting of their own free will.” GOBLET OF FIRE, supra note 7, at 213. When
Viktor Krum and later Madame Rosmerta commit crimes while under the
Imperius Curse (and Katie Bell attempts to do so), there is no apparent
sanction imposed upon them. See id. at 626-27; HALF-BLOOD PRINCE, supra
note 16, at 517, 588. But this defense may be unavailable to house-elves.
Susan Hall points out that Amos Diggory’s interrogation of Winky the houseelf misses the crucial question: Was Winky acting of her own free will, or
under orders (which, as a house-elf, she would have been unable to disobey)?
Hall, supra note 3, at 155-56; GOBLET OF FIRE, supra note 7, at 133-38.
61. Cal. Penal Code § 189.
62. Cal. Penal Code § 190.2(4).
63. GOBLET OF FIRE, supra note 7, at 217. Crouch might be wrong; two of
his students might succeed. Harry shows a natural aptitude for the Dark
Arts, and Hermione is an exceptionally skillful witch.
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Although there is a not inconsiderable amount of killing and
attempted killing in the novels,64 the Killing Curse is used
relatively rarely. Voldemort uses it to kill Harry’s parents in a
scene often revisited throughout the series. He also uses it to kill
Bertha Jorkins65 and a Muggle named Frank Bryce,66 and
attempts to use it to kill Harry.67 Barty Crouch Jr., posing as
Mad-Eye Moody, uses it on a spider.68 Wormtail uses Voldemort’s
wand and the Killing Curse to kill Cedric Diggory.69
The Killing Curse is most often used by Voldemort; Pettigrew
performs it with Voldemort’s wand, even though he presumably
has another wand–the one taken from Bertha Jorkins. In the
battle at the Department of Mysteries, the Death Eaters use many
spells against Harry’s gang, but none uses Avada Kedavra except,
at the end, Voldemort.70 Barty Crouch Jr. kills his father,
although we don’t learn how.71 It may be that the Killing Curse is
too difficult, or takes too much out of its user, to make it useful in
combat by any but the most skilled wizards.
The use of Avada Kedavra and other spells, dangerous or
otherwise, is restricted to humans by clause three of the Code of
Wand Use: “No non-human creature is permitted to carry or use a
wand.”72 As with “beings” and “beasts,” however,73 the boundaries
of the “human” category are a bit fuzzy. Hagrid, Madame
64. In addition to the examples above, see also Jann Lacoss, Of Magicals
and Muggles: Reversions and Revulsions at Hogwarts, in THE IVORY TOWER
AND HARRY POTTER: PERSPECTIVES ON A LITERARY PHENOMENON 67, 80 (Lana A
Whited ed. 2004); Anne Hiebert Alton, Generic Fusion and the Mosaic of
Harry Potter, in HARRY POTTER’S WORLD: MULTIDISCIPLINARY CRITICAL
PERSPECTIVES 141, 143 (Elizabeth E. Heilman ed. 2003).
65. GOBLET OF FIRE, supra note 7, at 655-66. Conceivably Jorkins could
have been killed by Wormtail using Voldemort’s wand, as Cedric was.
66. Id. at 15, 666.
67. In addition to his oft-discussed failure to kill Harry as a baby,
Voldemort uses the Killing Curse against Harry in Harry’s fourth and fifth
years. Id. at 663; ORDER OF THE PHOENIX, supra note 15, at 813. In the first
instance Harry is saved by his own quick reaction and the fact that his wand
is linked to Voldemort’s; in the second he is saved by Dumbledore.
69. Id. at 638.
70. ORDER OF THE PHOENIX, supra note 15, at 787-813. One Death Eater
attempts to use the Killing Curse on Hermione, but Harry and Neville
prevent him from completing the spell. Id. at 789.
72. Id. at 132.
73. See infra note 221.
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Maxime, and Fleur Delacour, all part-human, are permitted to
carry wands, although Hagrid’s is later broken when he is
expelled from Hogwarts.74
III. FATES WORSE THAN DEATH:
THE DEMENTOR’S KISS AND MEMORY CHARMS
It’s also surprising, even disturbing, that one more spell is not
Unforgivable: The innocuous-sounding Memory Charm. And the
Dementor’s Kiss, which is not a spell and can only be performed
by a dementor, is considerably more horrific than the Killing
Curse: It sucks out the victim’s soul.
1. Memory Charms
The Memory Charm can erase or modify memories. The
Ministry of Magic routinely dispatches Obliviators to modify the
memories of Muggles who have witnessed magical events.75 This
rather cavalier attitude toward Muggles is presented without
evident disapproval, as part of the ordinary work of the Ministry.
The pompous Gilderoy Lockhart’s use of Memory Charms against
other wizards and witches, however, is presented as skullduggery,
and he gets his comeuppance when his own Memory Charm
Apparently, to
backfires and wipes out his memories.76
paraphrase Doctor Who, a Muggle may be the sum of his or her
memories, but a wizard is even more so.77
A relatively privileged group of Muggles–relatives of wizards,
plus the Muggle Prime Minister–seem to enjoy some immunity
from the Ministry’s rather cavalier use of Memory Charms.78 For
74. Madame Maxime and Fleur Delacour are not British, of course, but
they carry their wands in Britain, where they are presumably subject to
British wizarding law. Madame Maxime is concealing her non-human
ancestry at the time, but for social rather than legal reasons. The
implications of this are discussed not only in the novels themselves but also
in Whited & Grimes, supra note 22, at 193.
75. In addition to the Obliviators and the Accidental Magic Reversal
Squad, the Department of Magical Accidents and Catastrophes includes a
Muggle-Worthy Excuse Committee. ORDER OF THE PHOENIX, supra note 15, at
130.
76. CHAMBER OF SECRETS, supra note 35, at 297-98, 303, 324, 331.
77. Dr. Who, The Five Doctors (BBC television broadcast, Nov. 25, 1983)
(The Fifth Doctor (Peter Davison)).
78. This does not mean that they are altogether immune; the talking
portrait that announces Fudge’s arrivals tells the Prime Minister (either
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example, when Harry blows up his Aunt Marge while she’s
visiting the Dursleys, Obliviators erase Marge’s memory of the
event–but not the Dursleys’.79 The Dursleys already know that
Harry is a wizard, and apparently this, or their relationship to
Harry, or some combination of the two, makes their memories less
vulnerable to casual Obliviation.
Other Muggles, however, have their memories erased or
modified at the whim of the Ministry’s Obliviators, or even of
ordinary wizards. The right to use Memory Charms against
Muggles is not limited to the Ministry’s Obliviators. Among the
memories to be erased are memories of having seen magical
creatures:
When the worst happens and a Muggle sees what he or
she is not supposed to see, the Memory Charm is perhaps
the most useful repair tool. The Memory Charm may be
performed by the owner of the beast in question, but in
severe cases of Muggle notice, a team of trained
Obliviators may be sent in by the Ministry of Magic.80
Sometimes this use of the Memory Charm can be justified as
necessary to prevent immediate loss of life: In 1932 a wizarding
family used memory charms on beachgoers at Ilfracombe “when a
rogue Welsh Green dragon swooped down upon a crowded
beach.”81 The Memory Charms prevented a panic that could have
cost lives; although other spells might have accomplished the
same result, the situation did not allow for sober reflection as to
Tony Blair or John Major, depending on chronology) that the call he is
waiting for, from the president of some other country, “can be rearranged. . . .
We shall arrange for the president to forget to call. He will telephone
tomorrow night instead.” HALF-BLOOD PRINCE, supra note 16, at 3. A call for
which the British Prime Minister is waiting is surely an important matter;
lives – Muggle lives – may hang in the balance. (There is a tendency on the
part of American readers to assume that the Prime Minister is waiting for a
call from the American president, but this may be mere cultural chauvinism.
There are many other presidents, from Afghanistan’s Hamid Karzai to
Zimbabwe’s Robert Mugabe, whose call might be important to the British
Prime Minister but whom he might nonetheless think of as “the wretched
man.” Id. at 1.)
79. PRISONER OF AZKABAN, supra note 47, at 44 (Cornelius Fudge).
80. NEWT SCAMANDER, FANTASTIC BEASTS & WHERE TO FIND THEM xx
(2001).
81. SCAMANDER, supra note 80, at xvi.
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the least intrusive spell to use.82
This use of Memory Charms to protect Muggle interests
directly is rare, however. More often the Charms are used out of
what often seems a merely reflexive desire, characteristic of so
many governments, for secrecy for its own sake. The Muggle
witnesses to Peter Pettigrew’s mass murder have their memories
of the event erased after their statements are taken.83 Perhaps,
had their memories been left intact and had the witnesses been
questioned at greater length, the Ministry might have discovered
that Pettigrew, not Black, was the murderer; instead, it took the
statements, erased the memories, and sent Black to Azkaban
without a trial.84 The use of the Memory Charms thus prevents
justice from being done and indirectly leads to Voldemort’s return,
much as Fudge’s too-hasty use of the Dementor’s Kiss on Barty
Crouch Jr. sets the Ministry on the wrong path for a full year and
allows Voldemort time to gather strength and unite his followers.
When young, Voldemort himself deliberately used Memory
Charms to send innocent persons to Azkaban and to conceal his
own guilt, although only Harry and Dumbledore (and later Ron
and Hermione) are aware of this.85
The Ministry’s use of Memory Charms on Muggles also
prevents Muggles from participating in the discourse regarding
the punishment of their magical assailants. When, for example,
Voldemort’s uncle Morfin magically assaults Tom Riddle, the
Muggle who will later become Voldemort’s father, Morfin
dismissively tells an investigating Ministry employee, “I expect
you’ve wiped the Muggle’s filthy face clean for him, and his
memory to boot[.]”86 By wiping Riddle’s memory, the Ministry has
82. At least one Muggle escaped the spell. “[a] Muggle bearing the
nickname ‘Dodgy Dirk’ holds forth in bars along the south coast on the
subject of a ‘dirty great flying lizard’ that punctured his lilo.” SCAMANDER,
supra note 80, at xvi n.7. Few Americans reading this sentence for the first
time are likely to know that a “lilo” is an air mattress. I certainly didn’t.
83. PRISONER OF AZKABAN, supra note 47, at 40, 208.
84. GOBLET OF FIRE, supra note 7, at 526. (Sirius Black).
85. HALF-BLOOD PRINCE, supra note 16, at 367 (Voldemort modifies
Morfin’s memory to make Morfin believe that he has killed the Riddles;
Morfin later dies in Azkaban); id. at 438-39 (Voldemort modifies the memory
of Hokey the house-elf to make her believe that she has accidentally poisoned
her mistress, Hepzibah Smith; Hokey is subsequently “convicted by the
Ministry” of this accidental crime).
86. Id. at 208.
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defined Riddle as an object of wizarding law, like a dragon or an
enchanted doorknob, with no part in the structuring of the
ongoing legal discourse.
To Riddle, though, the Ministry’s
modification of his memory might seem a more serious assault
than the hives inflicted on him by Morfin’s curse.
The sentencing of Sirius and Hagrid is in sharp and
apparently deliberate contrast to the way such matters are
handled in the Muggle world. While the Muggles we see the most
of are grotesques out of Jane Eyre as it might have been written
by Roald Dahl, the Muggle authorities are apparently
conscientious about fact-finding and justice: When a Muggle
named Frank Bryce is wrongly suspected of the murder of
Voldemort’s father and grandparents (who in fact have been killed
by Voldemort himself), he is detained and questioned but
eventually released. Even though Frank’s neighbors continue to
believe him guilty, the evidence connecting him to the crime is as
tenuous as that against Hagrid; in the Muggle world, that is not
enough to lead to imprisonment.87
The Obliviators are sent in because of their expertise, not
because the use of Memory Charms is dangerous. Yet it is
dangerous. Mr. Roberts, the Muggle owner of the land on which
the Quidditch World Cup takes place, cannot help noticing that
his tenants are wizards, and his memory is modified repeatedly:
“Needs a Memory Charm ten times a day to keep him happy.”88
Later, Roberts and his family are captured by Death Eaters and
tossed high in the air for some time.89 The next day, as Harry,
Hermione and the Weasleys are leaving,
Mr. Roberts had a strange, dazed look about him, and he
waved them off with a vague “Merry Christmas.”
“He’ll be all right,” said Mr. Weasley quietly as they
marched off onto the moor. “Sometimes, when a person’s
memory’s modified, it makes him a bit disorientated90 for
a while . . . and that was a big thing they had to make
88. Id. at 78 (unnamed Obliviator).
89. Id. at 119-21.
90. Another disconcerting word for American readers, who are likely to
feel a bit disoriented when they see it.
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him forget.91
We never see Roberts again, so it’s not clear whether Mr.
Weasley was correct or merely trying to reassure the children.
But we know that Memory Charms can cause permanent memory
damage: When the witch Bertha Jorkins discovers that Barty
Crouch Sr. is concealing his son, the Death Eater Barty Crouch
Jr., in his home, Crouch Sr. uses such a powerful Memory Charm
that Jorkins’ memory is permanently damaged.92
Memory Charms used against wizards seem to be taken more
seriously than Memory Charms used against Muggles. Gilderoy
Lockhart is a credit-stealer; he claims credit for the evil-fighting
accomplishments of other wizards. To make sure that his thefts
remain undiscovered, he uses Memory Charms to erase his
victim’s knowledge of their own accomplishments.93 This is wrong
on several levels, and is presented as evidence of Lockhart’s bad
character. Not only does Lockhart deprive his victims of memory,
wealth and fame, but also of the sense of self-worth that comes
from having overcome an evil and dangerous opponent for the
benefit of the community as a whole.
Later, Lockhart attempts to use Ron Weasley’s damaged
wand to erase Harry’s and Ron’s memories; the wand explodes in
his hand, and Lockhart’s memory is completely erased.94 He does
not recover; two-and-a-half years later Harry, Ron and Hermione
visit him in the Closed Ward at St. Mungo’s Hospital for Magical
Maladies & Injuries, and he remains an amnesiac. Not only does
he not remember events before the Memory Charm; he seems to
have difficulty forming new memories, 95 although the healer in
charge of the ward does express the perhaps overly optimistic
opinion that “Gilderoy does seem to be getting back some sense of
himself[,]”96 and he does show slight signs of recognizing Harry.97
91. Id. at 145 (Arthur Weasley).
92. Id. at 685. Breaking Memory Charms, while possible in some cases,
is also damaging; see id. at 655: “When I had extracted all useful information
from her, her mind and body were both damaged beyond repair.” (Lord
Voldemort)
93. CHAMBER OF SECRETS, supra note 35, at 297-98.
94. Id. at 303-04.
95. See ORDER OF THE PHOENIX, supra note 15, at 509-11.
96. Id. at 511.
97. Id. at 509.
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His basic personality is not destroyed, however, as it would have
been after a Dementor’s Kiss: He remains amiable, conceited and
utterly self-centered, as always.
Sharing the closed ward with Lockhart are Frank and Alice
Longbottom, Neville’s parents, who were severely tortured with
the Cruciatus Curse and as a result are in no better mental shape
than Lockhart.98 The parallel seems obvious, yet the Memory
Charm, perhaps because of its usefulness to the Ministry, is not
Unforgivable.99
Memory Charms are not only useful to the self-serving
Ministry, however; the good guys use Memory Charms, too.100
Kingsley Shacklebolt, an Auror and member of Dumbledore’s
secret Order of the Phoenix, surreptitiously modifies the memory
of a student, Marietta Edgecombe, to prevent her from
incriminating Harry.101 During the multi-character confrontation
in which this takes place, both Shacklebolt and Dumbledore
intervene to prevent a teacher, the evil Dolores Umbridge, from
Yet at the end of the scene
shaking Ms. Edgecombe.102
Dumbledore speaks approvingly, even admiringly, of Shacklebolt’s
modification of Ms. Edgecombe’s memory, and asks Professor
McGonagall to thank Shacklebolt.103
The modification of Ms. Edgecombe’s memory is not harmless,
however: Harry sees her “clutching her robe up to her oddly blank
eyes, staring straight ahead of her.”104 She apparently recovers
later, although we don’t see enough of her to be certain.
This use of Memory Charms by the good guys is not unique to
the wizarding world; it is a well-worn SF trope. In the movie Men
in Black, the eponymous characters (played by Will Smith and
Tommy Lee Jones) use a “flashy-thing” to erase the memories of
98. Id. at 513-14, 544.
99. The Cruciatus Curse, on the other hand, is of no use to the Ministry
even if it wished to disregard British and international law and use it to
extract information from prisoners, as Umbridge attempts to do to Harry.
See infra note 119, and accompanying text. Information extracted under
torture is far less reliable than information extracted under Veritaserum.
100. So do the bad guys. See supra note 85.
101. ORDER OF THE PHOENIX, supra note 15, at 615, 617, 621.
102. Id. at 616.
103. Id. at 621.
104. Id. at 617.
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Earthlings who’ve seen an unmistakable alien105–a use identical to
the Ministry’s use of Memory Charms.106 The Men in Black are
the Ministry of Magic, with “Earthlings” substituted for “Muggles”
and “aliens” for “magical beings and creatures.”
Memory erasure is dismissed even more casually in Revenge
of the Sith, the third entry in the execrable new Star Wars trilogy.
At the end of the movie Senator Bail Organa (Jimmy Smits), one
of the good guys, off-handedly gives instructions that “the protocol
droid’s mind is to be wiped.” C-3PO’s memories are erased, and
R2’s left intact, to patch over an inconsistency between the new
trilogy and the original.107
Other SF works take memories more seriously, using erasure
of memory either as a dangerous form of therapy, with serious
consequences for individual identity,108 or as a punishment for
serious crimes. In the latter case some works treat a “brain-wipe”
as something equivalent to a Dementor’s Kiss, completely erasing
the original identity and making the body available for occupancy
by a new identity or soul.109 Others take the view that the soul
survives, even without memories,110 or discuss the possibility of
conflict between imperfectly erased memories and a newly
implanted artificial personality.111
2. The Dementor’s Kiss
The Dementor’s Kiss is even worse than the full-erasure
Memory Charm performed by Gilderoy Lockhart on himself. It
sucks out the victim’s soul, leaving an empty shell without
memory or personality.112 It is a punishment worse than the
105. MEN IN BLACK (Columbia 1997)
106. SCAMANDER, supra note 80.
107. The viewer is also supposed to accept that for the next twenty years
or so R2 never mentions any of their previous experiences to his friend, but in
a galaxy that can be traversed from center to rim in fifteen minutes,
anything’s possible.
108. See, e.g., Walter Jon Williams, Lethe, in NEBULA AWARDS SHOWCASE
2000 165, 179 (2000); EDWARD BRYANT, CINNABAR 27-41 (1977)
109. See, e.g., PHILLIP C. JENNINGS, THE BUG LIFE CHRONICLES (1989).
110. Cordwainer Smith (Paul Linebarger), The Dead Lady of Clown Town,
in THE BEST OF CORDWAINER SMITH 117 (1975). This seems to be what has
happened to Lockhart.
111. See, e.g., ROBERT SILVERBERG, THE SECOND TRIP (1972)
112. The effects are unmistakable: “‘Of course they didn’t get his soul,
you’d know if they had,’ said Harry [to Aunt Petunia], exasperated.” ORDER
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death penalty; there are many hints of an afterlife, or various
sorts of afterlives, in the wizarding world, but none whatsoever for
those whose souls are sucked out by dementors. Yet the Ministry
inflicts it without requiring any legal process whatsoever, let
alone the intricate process required for the execution of Buckbeak
the hippogriff.
The Dementor’s Kiss is not a spell; it can only be performed
by dementors, not by wizards. However, dementors perform, or
attempt, the Kiss at the direction of wizards: Cornelius Fudge
sends dementors to perform the Kiss on Sirius Black113 and a
dementor accompanying Fudge performs the Kiss on Barty Crouch
Jr., with Fudge’s apparent consent.114 Dolores Umbridge sends
dementors to Little Whinging to perform the Kiss on Harry; they
nearly suck out Dudley’s soul, but Harry manages to save himself
and his cousin with the Patronus Charm.115 For this use of magic
Harry undergoes a criminal trial before the Wizengamot.116
Professor Umbridge, a Ministry employee closely allied to
Fudge, seems to feel completely above the law. Her crimes,
including dispatching the dementors, lead to no legal sanction
more severe than loss of her teaching position at Hogwarts; she
then returns to her work at the Ministry.117 Similarly, her
physical torture of Harry Potter and Lee Jordan is surely illegal,
yet she makes no particular attempt at secrecy.118 She even
threatens to use the Cruciatus Curse on Harry before a dozen
witnesses–one of whom is the overtly ambitious Draco Malfoy,
who could be expected to use such information to his advantage.119
Harry, a realist, has no faith in the Ministry’s commitment to
due process: “I bet you anything Fudge would’ve told Macnair to
murder Sirius on the spot . . . .”120 When Sirius is later captured,
OF THE PHOENIX, supra note 16, at 34.
113. PRISONER OF AZKABAN, supra note 47, at 416.
115. ORDER OF THE PHOENIX, supra note 15, at 17-19.
116. Id. at 137-51.
117. See HALF-BLOOD PRINCE, supra note 16, at 345, 642.
118. Umbridge’s method of torture is Kafka-lite. She forces Harry to write
with a pen that carves “I will not tell lies” into the back of his hand. See
FRANZ KAFKA, THE METAMORPHOSIS, IN THE PENAL COLONY, AND OTHER
STORIES (1995) (as In Der Strafkolonie 1919).
120. PRISONER OF AZKABAN, supra note 47, at 404 (ellipses in original).
The use of the Dementor’s Kiss on Sirius has been pre-authorized by the
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Fudge does, in fact, have Macnair bring dementors to suck out
Sirius’ soul. As with the Barty Crouch Jr. affair, Fudge’s concern
seems to be for appearances rather than justice: “This whole Black
affair has been highly embarrassing. I can’t tell you how much
I’m looking forward to informing the Daily Prophet that we’ve got
him at last.”121
Apparently the wizarding world, too, has its share of people
who agree with Uncle Vernon, and Fudge is pandering to this
audience: “‘When will they learn,’ said Uncle Vernon, pounding
the table with his large purple fist, ‘that hanging’s the only way to
deal with these people?’”122
Later, when the Death Eater Barty Crouch Jr. is captured,
Fudge himself brings a dementor into Hogwarts to suck out
Crouch’s soul, thus preventing Crouch from giving testimony that
might have been politically embarrassing to Fudge.123
The situation of house-elves is, not surprisingly, even worse.
Apparently their enslavement gives their masters the power of life
and death over them: “dear Aunt Elladora . . . she started the
family tradition of beheading house-elves when they got too old to
carry tea-trays . . . .”124
IV. THE LAW OF THE WIZARDING WORLD
The wizarding world of Great Britain, and probably Ireland as
well,125 is governed by the Ministry of Magic. In Harry’s first five
years at Hogwarts, the Minister of Magic is Cornelius Fudge, a
“[b]ungler if there ever was one.”126 The Ministry is apparently
part of the British government, although one whose existence is
not publicized: eleven-year-old Harry is surprised to learn of its
existence,127 as is his much older Uncle Vernon, four years later:
Ministry, however. See id. at 247.
121. Id. at 416-17 (Fudge to Snape).
122. Id. at 17.
123. GOBLET OF FIRE, supra note 7, at 703-04. The interrogation of Crouch
by Snape and Dumbledore presents the only effective use of Veritaserum, a
magical truth serum that should, logically, be enormously useful in criminal
cases. But then, as Hermione points out, “A lot of the greatest wizards
haven’t got an ounce of logic[.]” SORCERER’S STONE, supra note 53, at 285.
124. ORDER OF THE PHOENIX, supra note 16, at 113 (Sirius Black).
125. See infra notes 167-73, and accompanying text.
126. SORCERER’S STONE, supra note 53, at 65.
127. Id. at 64. The exact relationship between the Ministry and the
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“Ministry of Magic?” bellowed Uncle Vernon. “People like you in
government? Oh this explains everything, everything, no wonder
the country’s going to the dogs . . . .”128
This secrecy from the Muggle population as a whole is
apparently required by Britain’s obligations under international
law, particularly the International Statute of Wizarding Secrecy of
1692.129 The maintenance of this secrecy seems to be the primary
reason for the Ministry’s existence: Hagrid tells Harry that “their
main job is to keep it from Muggles that there’s still witches an’
wizards up an’ down the country.”130 When Harry asks why such
secrecy is necessary, Hagrid tells him “Blimey, Harry, everyone’d
be wantin’ magic solutions to their problems. Nah, we’re best left
131
alone.” This answer is not particularly satisfying; if magic could
cure Muggle ills, it seems selfish of the wizarding world to deny
the Muggles the benefit of their assistance. Madame Pomfrey, the
Hogwarts school healer, can regrow missing bones overnight, and
could probably save the lives of millions of Muggles. To provide a
moral justification for keeping Madame Pomfrey at Hogwarts
healing minor Quidditch injuries, rather than in Africa saving
Muggle children from malaria and AIDS, something more
compelling is needed. A mere desire to be left alone is not enough.
There are three more compelling possible justifications:
Secrecy may be necessary to protect wizards from Muggles, to
protect Muggles from each other, and to protect Muggles from
wizards. The first of these is given little attention. On an
individual basis, wizards have little to fear from Muggles. One of
Harry’s school books explains that medieval witch-burnings were
“completely pointless” because
Muggle government is not clear, but the Ministers of Magic seem to treat the
Muggle Prime Minister not as a superior or even an equal, but a subordinate.
We do see one example of a requirement that the Ministry report to the
Muggle government, but Fudge treats it dismissively: “Oh, and I almost
forgot. . . We’re importing three foreign dragons and a sphinx for the
Triwizard Tournament, quite routine, but. . . it’s down in the rule book that
we have to notify you if we’re bringing highly dangerous creatures into the
country.” HALF-BLOOD PRINCE, supra note 16, at 9.
128. ORDER OF THE PHOENIX, supra note 15, at 29
129. See CHAMBER OF SECRETS, supra note 35, at 21; SCAMANDER, supra
note 80, at xvi; KENNILWORTHY WHISP, QUIDDITCH THROUGH THE AGES 16
(2001).
131. Id. at 51.
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On the rare occasion that [Muggles] did catch a real witch
or wizard, burning had no effect whatsoever. The witch
or wizard would perform a basic Flame Freezing Charm
and then pretend to shriek with pain while enjoying a
gentle, tickling sensation. Indeed, Wendelin the Weird
enjoyed being burned so much that she allowed herself to
be caught no less than forty-seven times in various
disguises.132
Wendelin is played strictly for laughs, but there are hints of
“the dark days that preceded the wizards’ retreat into hiding.”133
While the potential for individual Muggles to harm individual
wizards is slight, words like “retreat” and “hiding” suggest a fear
for the safety of the wizards rather than of the Muggles. Wizards
are not immune to harm from Muggle weapons, and Muggles
greatly outnumber wizards, so one reason for the International
Statute of Wizarding Secrecy may be fear of persecution.
The consequences of a false accusation of witchcraft, even in
today’s Britain, can be dangerous and even fatal.134 In past
centuries tens of thousands, perhaps hundreds of thousands, of
innocent135 people, mostly women and girls, died in Europe’s
medieval witch-hunts, in one of the strangest of the continent’s
132. BATHILDA BAGSHOT, A HISTORY OF MAGIC (1947), quoted in PRISONER
OF AZKABAN, supra note 47, at 2.
133. SCAMANDER, supra note 80, at xv (citing BAGSHOT, supra note 131).
See also CHAMBER OF SECRETS, supra note 35, at 150 (At the time of the
founding of Hogwarts, “witches and wizards suffered much persecution.”
(Professor Binns.))
134. These consequences are too unpleasant to relate in an article like this
one; see, e.g., The Victoria Climbié Inquiry http://www.victoria-climbieinquiry.org.uk/ (a child thought to be possessed is killed by neglect and
maltreatment); John Eekelaar, Children Between Cultures, 18 INT’L J.L.
POL’Y & FAM. 178, 189-90 (2004). Victoria Climbié’s case, sadly, is not an
isolated one. In a similar case, three persons were recently convicted of the
severe torture of another eight-year-old girl suspected of witchcraft; only the
timely intervention of a street warden prevented the girl from being
murdered as well. BBC News, ‘Witch’ Child Cruelty Trio Guilty June 3, 2005,
http://news.bbc.co.uk/go/pr/fr/-/1/hi/england/london/4607435.stm.
See also
BBC News, Boys ‘Used for Human Sacrifice,’ June 16, 2005,
http://news.bbc.co.uk/go/pr/fr/-/1/hi/uk/4098172.stm; BBC News, Crucified
‘Exorcism’ Nun Buried, June 20, 2005, http://news.bbc.co.uk/go/pr/fr//1/hi/world/europe/4112568.stm.
135. All were necessarily innocent of witchcraft, even those who believed
themselves to be witches; in our world, unlike Harry’s, there is no witchcraft.
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many historical outbreaks of mass murder.136 The wizarding
world acknowledges that the Muggle fear of witches is more
dangerous to Muggles wrongly suspected of witchcraft than to
actual witches:
If any Muggle is unwise enough to confide in another that
he has spotted a Hippogriff winging its way north, he is
generally believed to be a drunk or a “loony.” Unfair
though this may seem on the Muggle in question, it is
nevertheless preferable to being burnt at the stake or
drowned in the village duckpond.137
There is another reason for keeping the two worlds as
separate as possible: Wizards have the capability, and many have
the inclination, to harm Muggles. With the Unforgivable Curses
they can torture, enslave and kill Muggles, who are powerless to
resist. With ordinary, everyday magic they can also torture and
kill, as well as steal, play practical jokes, and cheat Muggles in
business. And, judging from the number of people of Harry’s
parents’ generation who have died violent deaths, the British
wizarding world is far more violent than the United Kingdom as
Muggles know it.138
There is a strong supremacist element in the wizarding world;
this finds its fullest expression in the Death Eaters, for whom the
physical abuse and murder of Muggles is a form of entertainment:
“‘Harry, that’s their idea of fun. Half the Muggle killings back
when You-Know-Who was in power were done for fun.’”139
Voldemort’s Death Eaters are not the only wizards who seem to
view Muggles as game animals: Sirius Black’s mother’s cousin
136. See generally CHARLES MACKAY, EXTRAORDINARY POPULAR DELUSIONS
AND THE MADNESS OF CROWDS 462-564 (2d ed. 1852) (1932); ALAN C. KORS &
EDWARD PETERS, WITCHCRAFT IN EUROPE 1100-1700: A DOCUMENTARY HISTORY
(1972).
137. SCAMANDER, supra note 80, at xvii.
138. See, e.g., ORDER OF THE PHOENIX, supra note 15, at 173-74 (This is the
scene in which Mad-Eye Moody (the real one) shows Harry a picture of the
original Order of the Phoenix. Of the nineteen people Moody identifies in the
photo, seven have since died violent deaths, one has disappeared and is
presumed dead, and two have been tortured into insanity. Moody himself
has sustained serious injuries. Three more (Sirius Black, Emmeline Vance
and Dumbledore) die by violence within the next year. (This count assumes
that Fabian Prewett, mentioned by Moody, is actually in the photo. The text
is ambiguous on this point.))
139. GOBLET OF FIRE, supra note 7, at 143 (Arthur Weasley).
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Araminta Meliflua “tried to force through a Ministry Bill to make
Muggle-hunting legal.”140 And, of course, “[w]e are all familiar
with the extremists who campaign for the classification of
Muggles as ‘beasts’.”141
The evil Lucius Malfoy plots to sabotage Arthur Weasley’s
attempt to pass a Muggle Protection Act,142 and Arthur sees even
practical jokes (regurgitating toilets, for instance) as a symptom of
this attitude: “[I]t’s not so much having to repair the damage, it’s
more the attitude behind the vandalism, Harry. Muggle-baiting
might strike some wizards as funny, but it’s an expression of
This not merely
something much deeper and nastier[.]”143
patronizing but dangerously callous attitude toward Muggles is of
a piece with (human) wizard attitudes toward other magical
beings such as giants and, especially, house-elves.
But for all the wizarding world’s aloofness, the Ministry of
Magic seems willing to coordinate with the Muggle authorities
when necessary to further its own interest in secrecy. When
“magical catastrophes or accidents are simply too glaringly
obvious to be explained away by Muggles without the help of an
outside authority,” as in the case of the “Loch Ness kelpie,” the
Ministry’s “Office of Misinformation will . . . liaise directly with
the Muggle Prime Minister to seek a plausible non-magical
explanation[.]”144 And when Sirius Black escapes from Azkaban,
Fudge “inform[s] the Muggle Prime Minister of the crisis.”145 At
the time Black is believed to have killed thirteen people, twelve of
them Muggles, so his escape is definitely a “crisis.”146 Yet even
this limited cooperation between the wizarding and Muggle
elements of the British government may violate the International
Statute of Wizarding Secrecy: Fudge’s action leads to “critici[sm]
by some members of the International Federation of Warlocks.”147
The Prime Minister is in on the secret of the wizarding
world’s existence, as are the close Muggle relatives of wizards like
140. ORDER OF THE PHOENIX, supra note 15, at 113 (Sirius Black).
141. SCAMANDER, supra note 80, at xiii.
142. CHAMBER OF SECRETS, supra note 35, at 336.
144. SCAMANDER, supra note 80, at xx.
145. PRISONER OF AZKABAN, supra note 47, at 37 (“Black Still at Large,”
article in the Daily Prophet); HALF-BLOOD PRINCE, supra note 16, at 7-9.
146. See, e.g., PRISONER OF AZKABAN, supra note 47, at 38, 208.
147. Id. at 37 (“Black Still at Large,” article in the Daily Prophet.)
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the Dursleys and Hermione’s parents. Fudge has “the Prime
Minister’s assurance that he will not breathe a word of Black’s
true identity to anyone. And let’s face it–who’d believe him if he
did?”148 Fudge says more or less the same thing to the Muggle
Prime Minister: “My dear Prime Minister, are you ever going to
tell anybody?”149
1. The British Wizarding World and International Law
The laws and customs governing the wizarding folk of other
countries differ from those of the British wizarding world.
Durmstrang, wherever it is located, teaches the Dark Arts, while
Hogwarts only teaches Defense Against the Dark Arts.150
Different wizarding cultures produce different laws; flying
carpets, for instance, are legal in (at least) Bangladesh, India,
Iran, Mongolia and Pakistan,151 but have apparently been illegal
in Britain for several decades, although there is pressure to repeal
the ban.152
Just as in the Muggle world, these different legal systems
interact, when necessary, through international law. Wizards
have their own structures of international law, which have
adopted rules such as the International Statute of Wizarding
Secrecy. International human rights law, however, seems to mean
little more to the Ministry of Magic than does British Muggle law.
Executions, let alone executions ordered by administrative
officials without any judicial determination of guilt, are forbidden
by Protocol 6 to the European Convention on Human Rights, to
which the United Kingdom became a party in 1999.153 While
(depending on which chronology is accepted154) Protocol 6 might
not have been in effect for the United Kingdom at the time of the
148. Id. at 38 (“Black Still at Large,” article in the Daily Prophet); see also
HALF-BLOOD PRINCE, supra note 16, at 6.
149. HALF-BLOOD PRINCE, supra note 16, at 6.
150. GOBLET OF FIRE, supra note 7, at 165 (Draco Malfoy).
151. WHISP, supra note 129, at 46.
153. Protocol No. 6 to the Convention for the Protection of Human Rights
and Fundamental Freedoms concerning the Abolition of the Death Penalty
art. 1, Apr. 28, 1983, Europ. T.S. No. 114.
154. Similar chronology problems exist with the Human Rights Act of
1998, which incorporated the protections in the European Convention on
Human Rights into British law.
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execution of Crouch (assuming that soul-destruction falls within
the definition of execution), the more general provisions of the
International Covenant on Civil and Political Rights would still
have prevented execution without due process and by such cruel
means.155
If the Ministry of Magic is in some sense a separate
sovereignty not subject to United Kingdom law, it is unlikely to be
a party to any Muggle international agreements. Nonetheless,
certain of those agreements and the principles they embody have
attained the status of international custom or even jus cogens–
peremptory norms from which no derogation is permitted, even for
the Ministry of Magic.
Torture has long been outlawed by conventional international
156
The United Kingdom has been a party to the European
law.
Convention for the Prevention of Torture157 since it entered into
force in 1989, and to the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment158 since
1988. These treaties thus apply to most of the acts described in
the text regardless of which chronology is used. While the
Ministry of Magic may feel that it has done its bit to comply with
Article 4 of the latter treaty by outlawing the use of the Cruciatus
Curse,159 it continues to operate the prison at Azkaban, where the
prisoners are subjected to constant mental torment by dementors,
driving most mad.160 This may be torture within the meaning of
Article 1 of the treaty, which provides that:
155. See infra note 166, and accompanying text.
156. See, e.g., International Covenant on Civil and Political Rights, G.A.
Res. 2200A (XXI), art. 7 (Dec. 16, 1966); Universal Declaration of Human
Rights, G.A. Res. 217A (III), art. 5 (Dec. 10, 1948). Both declare in identical
terms that “no one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment.”
157. European Convention for the Prevention of Torture and Inhuman or
Degrading Treatment, Nov. 26, 1987, Europ. T.S. No. 126.
158. Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85.
Treatment or Punishment, art. 4(1), Dec. 10, 1984, 1465 U.N.T.S. 85: “Each
State Party shall ensure that all acts of torture are offences under its
criminal law. The same shall apply to an attempt to commit torture and to an
act by any person which constitutes complicity or participation in torture.”
160. See GOBLET OF FIRE, supra note 7, at 529.
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For the purposes of this Convention, the term “torture”
means any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person
for such purposes as obtaining from him or a third person
information or a confession, punishing him for an act he
or a third person has committed or is suspected of having
committed, or intimidating or coercing him or a third
person, or for any reason based on discrimination of any
kind, when such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of a
public official or other person acting in an official
capacity. It does not include pain or suffering arising only
from, inherent in or incidental to lawful sanctions.161
Not only is the United Kingdom a party to various antitorture treaties that would seem to outlaw the use of dementors at
Azkaban, but the prohibition against torture has come to be
accepted as a jus cogens norm of international law–one from which
no derogation is permissible.162 In other words, even if the United
Kingdom were to withdraw from all of the anti-torture treaties to
which it is a party, international law would still forbid it to
authorize torture.163 The same is true of slavery; even were the
UK to withdraw from all of the anti-slavery treaties to which it is
a party, the enslavement of the house-elves would continue to
violate international law.164
There is no jus cogens norm forbidding the death penalty; if
the Ministry is not bound by Britain’s treaties, nothing in
international law prohibits it from executing prisoners–but only
after they have been afforded due process of law, and not by the
Treatment or Punishment, art. 1, Dec. 10, 1984, 1465 U.N.T.S. 85.
162. See Vienna Convention on the Law of Treaties, art. 53, May 22, 1969,
1155 U.N.T.S. 331. Under U.S. law, at least, violation of the jus cogens norm
against torture does not necessarily create a private right of action, because
of sovereign immunity. See Saudi Arabia v. Nelson, 507 U.S. 349 (1993).
163. See, e.g., DAVID J. BEDERMAN, INTERNATIONAL LAW FRAMEWORKS 98
(2001); WILLIAM R. SLOMANSON, FUNDAMENTAL PERSPECTIVES ON
INTERNATIONAL LAW 12-13, 45-46 (3d ed. 1999) (quoting Committee of U.S.
Citizens Living in Nicaragua v. Reagan, 859 F.2d 929 (1988)).
164. See, e.g., BEDERMAN, supra note 163, at 98 (2001) (prohibition against
slavery is a jus cogens norm).
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Dementor’s Kiss, which is probably torture.165 Muggle
international law has not had the opportunity to address memory
modification and erasure, probably because Muggles lack the
ability to do these things.
2. British Law – Magic and Muggle
All of the students that we meet at Hogwarts appear to be
British. Some, such as Cho Chang, Lee Jordan, the Patil sisters,
and Dean Thomas, are presumably the descendants of
immigrants, but the only character who acts at all “foreign” is
Seamus Finnigan, the token Irish character.166 In the wizarding
world, however, Ireland does not appear to be independent; at the
Quidditch World Cup we meet the Bulgarian Minister of Magic
(“Vell, it vos very funny”) but no Irish Minister of Magic.167
Instead, Ireland seems to be represented by Cornelius Fudge,
Britain’s Minister of Magic.
The wizards of a great many other former British colonies,
from the United States168 to Uganda,169 have apparently gained
their independence, but there is no suggestion of either an
independent Ireland or an Irish partition. In the earlier stages of
the Quidditch World Cup, England “‘Went down to Transylvania,
three hundred and ninety to ten,’ said Charlie gloomily. ‘Shocking
performance. And Wales lost to Uganda, and Scotland was
slaughtered by Luxembourg.’”170 The comparison to soccer’s World
Cup is obvious.171 Yet in our world, Northern Ireland has a World
Cup soccer team, and Transylvania does not.172 In Harry’s world,
165. “This penalty can only be carried out pursuant to a final judgement
rendered by a competent court.” See supra note 156, art. 6(2). “Anyone
sentenced to death shall have the right to seek pardon or commutation of the
sentence.” Id. at art. 6(4). Severus Snape tells Sirius Black in the movie
version of PRISONER OF AZKABAN, but not in the book, that the Dementor’s
Kiss “is said to be nearly unbearable to watch – but I’ll do my best.” The
movies, of course, are not canon.
166. Cormac McLaggen seems very British; his family is well-connected to
the Ministry elite, and he is distinguishable from the other students only by
his unpleasantness.
168. WHISP, supra note 129, at 44-45.
169. Id. at 42-43; GOBLET OF FIRE, supra note 7, at 63.
170. GOBLET OF FIRE, supra note 7, at 63 (Charlie Weasley).
171. See also infra note 231.
172. FIFA World Cup Teams: Germany 2006, http://fifaworldcup.yahoo.
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Northern Ireland does not enter a separate team in the Quidditch
World Cup; if it did, Charlie Weasley would have included it in his
litany of catastrophe.173 The political divisions of the wizarding
world, insofar as they can be inferred from the sports pages of the
Daily Prophet, evidently differ somewhat from our own.
There are apparently wizarding schools in many countries; we
only see two of these other schools, and those at a distance, but at
least one of them appears to be somewhat less monocultural than
Hogwarts. Each represents a British stereotype of Europe, taking
that stereotype to the point of caricature and thus denying it.
Effete Beauxbatons, apparently in France, is more refined and
less effectual than Hogwarts. Its champion, Fleur Delacour,
places last in the Triwizard Tournament, as might be expected of
the over-civilized Continentals one encounters from Calais on
south.174
Harsh Durmstrang is an amalgam of German and Russian
grimness–the characteristics of Europe’s center and east, still seen
by many Britons as the Land of Mordor.175 The name is derived
from Sturm and Drang, the gloomy Romantic eighteenth-century
literary movement based on the play of the same name.176 The
com/06/en/t/team/index.html (last visited Nov. 21, 2005).
173. This is not to say that there are no Quidditch teams in the north of
Ireland; there is at least one, the Ballycastle Bats. See GOBLET OF FIRE,
supra note 7, at 393. In Quidditch Through the Ages, however, Kenilworthy
Whisp makes no distinction between the Bats and teams in what Muggles
know as the Republic of Ireland, such as the Kenmare Kestrels, or other
teams in the British & Irish League. WHISP, supra note 129, 31-38. It’s
worth noting, though, that even among Muggles the Republic of Ireland and
Northern Ireland share a single cricket league, and the Gaelic Athletic
Association organizes island-wide competitions in traditional sports such as
hurling (not what it sounds like) and Gaelic football. See Border? What
Border?, THE ECONOMIST, Aug. 6, 2005, at 45. The Quidditch teams of Great
Britain and Ireland are administered by the Ministry: “Level seven,
Department of Magical Games and Sports, incorporating the British and
Irish Quidditch League Headquarters, Official Gobstones Club, and
Ludicrous Patents Office.” ORDER OF THE PHOENIX, supra note 15, at 129.
174. It’s more than a bit disturbing that Fleur Delacour is also the only
female champion.
175. These not infrequent depictions of central and eastern Europe in
British literature might be seen as “highly stylized simulacra, elaborately
wrought imitations of what a live [central and eastern Europe] might be
thought to look like[.]” See EDWARD W. SAID, ORIENTALISM 88 (New York:
Vintage Books, 1979) (1978). But in this case it’s probably just parody.
176. See generally, e.g., DAVID HILL, LITERATURE OF THE STURM UND DRANG
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students may be from a variety of countries; Viktor Krum, we
know, is Bulgarian, but Durmstrang is not in Bulgaria. Its
location is a secret; Viktor lets slip to Hermione that
Vell, ve have a castle also, not as big as this, nor as
comfortable, I am thinking . . . Ve have just four floors,
and the fires are lit only for magical purposes. But ve
have grounds larger even than these – though in vinter,
ve have very little daylight, so we are not enjoying them.
But in summer ve are flying every day, over the lakes and
mountains – 177
The reference to “very little daylight”–even by Hogwarts
standards, apparently–suggests that Durmstrang lies to the north
of Scotland. Not many inhabited places in Europe are north of
Scotland and have mountains and lakes. If one accepts the rather
forgiving British definition of “mountain,” Russia’s Kola Peninsula
fits the description, as do parts of Scandinavia. One fan theory
places Durmstrang in Latvia,178 which is at about the same
latitude as Scotland and has lakes but nothing that could properly
be called a mountain.
We also learn that Draco Malfoy’s father considered sending
him to Durmstrang instead of Hogwarts.179 So Durmstrang,
located perhaps in Russia or Scandinavia, has at least one
Bulgarian student and could conceivably have accepted a British
student. The language of instruction may be English; there is no
sign that Draco speaks any other language, and the Durmstrang
students converse with their headmaster, Karkaroff, in English.
Unlike his
Karkaroff himself also seems to be English.180
2-3 (David Hill ed. 2003). One unfortunate side effect of this choice of name
may turn out to be a renewed wave of interest among teenagers in THE
SUFFERINGS OF YOUNG WERTHER and its ilk.
178. Heidi Tandy, Geography, HPfGU Fantastic Posts, Oct. 26, 2002,
available at http://www.hpfgu.org.uk/faq/geography.html#Durmstrang (last
visited June 13, 2005).
180. Many of the interpretations here are my own and may come as a
shock to those deeply immersed in HP fandom. With two of these, in
particular, I’m bracing myself for a flood of e-mail: The assertion that the
wizarding Ireland is not independent, and the assertion that Karkaroff is not
Russian. Now that Karkaroff is deceased, however, the latter point may be
moot. And at least I have more sense than to venture into the Shipping
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students, who speak with thick accents (“Professor, I vood like
some vine”), Karkaroff’s English is apparently flawless (“I notice
you have dribbled food all down the front of your robes again,
disgusting boy –”).181 Despite his Russian given name (Igor) and
his Russianesque, presumably coined surname, Karkaroff seems,
in speech and manner, to be as British as Dean Thomas.
Karkaroff was also a Death Eater, and all of the other Death
Eaters seem to be British.182 The Death Eater insurrection was
dealt with by the British Ministry of Magic; if Voldemort’s Death
Eaters were part of a global conspiracy, we haven’t yet heard
about it, although Voldemort certainly made news outside of
Britain: the Bulgarian Minister of Magic recognizes Harry’s scar,
“gabbling loudly and excitedly.”183
If the Ministry is subject to British law, its actions in sending
Black, and especially Hagrid, to prison without a trial are
questionable, and Fudge’s de facto summary execution of Barty
Crouch Jr. is an extremely serious crime. The British government
has some latitude to imprison suspected terrorists for limited
periods without a trial, and while the definition of “terrorism” is
slippery indeed, Death Eaters certainly fall within it.184 Hagrid,
however, is suspected of an ordinary crime (sending a monster to
attack students), not of being a Death Eater.
The calendar question becomes somewhat significant here;
depending on which chronology is accepted, the Ministry’s acts
may be governed by the Prevention of Terrorism (Temporary
Provisions) Act of 1974 and its periodic updates,185 or by the
Terrorism Act of 2000186 and the Anti-Terrorism, Crime and
Security Act of 2001.187 Again, however, the answer makes little
difference; while the Muggle authorities in Britain can detain
suspected terrorists on the authority of the Secretary of State (or,
presumably, the Minister of Magic), the period of such detentions
Wars.
182. The same arguments apply to Antonin Dolohov.
184. See, e.g., CLIVE WALKER, THE PREVENTION OF TERRORISM IN BRITISH
LAW 4-6 (1986).
185. Prevention of Terrorism (Temporary Provisions) Act, 1974, ch. 56
(Eng.).
186. Terrorism Act, 2000 (Eng.)
187. Anti-terrorism, Crime and Security Act, 2001 (Eng.)
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is limited to a maximum of five days under the 1984 version of the
Temporary Provisions Act;188 from 1975 on, the government had
not had the power to intern suspects for long periods without trial
even in Northern Ireland itself.189 Black is detained for over a
decade. The 2000 Act, like the various preceding Temporary
Provisions Acts, includes no provision for internment without
trial.190 The 2001 Act, however, provides for the possibility of
long-term detention of suspected foreign (but not British)
Under the 2001 Act over a dozen persons,
terrorists.191
presumably suspected terrorists, have been detained, some for
many years, at Belmarsh prison – Britain’s Guantánamo.192
Regardless of which Harry Potter chronology one accepts, Sirius
was imprisoned before 2001 and in any event is British, not
foreign. However, the current Muggle government in Britain is
apparently willing to disregard the civil rights of some of its
residents to the same degree as the Ministry of Magic.
The action of Barty Crouch Sr. in sending Sirius Black to
Azkaban without a trial was not exceptional, nor was it peculiar to
Crouch. Over a decade later, Cornelius Fudge does the same to
Hagrid, even though he does not appear to be convinced of
Hagrid’s guilt:
“Look at it from my point of view,” said Fudge, fidgeting
with his bowler. “I’m under a lot of pressure. Got to be
seen to be doing something. If it turns out it wasn’t
Hagrid, he’ll be back and no more said. But I’ve got to
take him. . .”
***
“Not a punishment, Hagrid, more a precaution.
If
188. Prevention of Terrorism (Temporary Provisions) Act, 1984, ch. 8 §§
12(4), 12(5) (Eng.).
189. CLIVE WALKER, BLACKSTONE’S GUIDE TO THE ANTI-TERRORISM
LEGISLATION 217 (2002).
190. WALKER (BLACKSTONE’S), supra note 189, at 217.
191. Anti-terrorism, Crime and Security Act, 2001 §§ 21-23 (Eng.)
192. See Denise Winterman, Belmarsh - Britain’s Guantanamo Bay? BBC
News, Oct. 6, 2004, available at http://news.bbc.co.uk/1/hi/magazine/
3714864.stm (visited June 13, 2005); see also Philip A. Thomas, Emergency
and Anti-Terrorist Powers: 9/11: U.S.A. and U.K., 26 FORDHAM INT’L L.J.
1193 (2003).
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someone else is caught, you’ll be let out with a full
apology –”193
Although Dumbledore disapproves and disagrees, he seems to
believe that Fudge is acting legally, if incorrectly. On the next
page Dumbledore himself is suspended as Hogwarts headmaster–
a step that seems to require more in the way of legal formalities
than sending someone to prison, possibly for life: “‘Dreadful thing,
Dumbledore,’ said Malfoy lazily, taking out a long roll of
parchment, ‘but the governors feel it’s time for you to step aside.
This is an Order of Suspension – you’ll find all twelve signatures
on it.’”194
Apparently wizarding law provides more protection for
Dumbledore’s job than for Hagrid’s freedom.
And Fudge’s
replacement as Minister of Magic, Rufus Scrimgeour, shows no
greater respect for due process: His government arrests Stan
Shunpike, a conductor on the Knight Bus, on extremely flimsy
evidence and holds him for many months, with no indication of
any plan to release him.195
Most suspected Death Eaters do receive a trial of sorts,
though: In Dumbledore’s Pensieve, Harry witnesses the trials of
several such suspects, including Barty Crouch Jr., Ludo Bagman,
and Igor Karkaroff.196 To adult readers the McCarthyesque aspect
of these proceedings, especially Karkaroff’s (Karkaroff is
pressured to incriminate others, and granted clemency when he
does so) provides a protracted political pun: witches and wizards
Ludo Bagman is acquitted,
conducting a witch-hunt.197
193. CHAMBER OF SECRETS, supra note 35, at 261. See also supra note 121,
and accompanying text. Hagrid has fallen under suspicion of opening the
Chamber of Secrets, endangering students, because fifty years earlier he was
also suspected of opening the Chamber. Ron and Harry later learn that
Hagrid was innocent of opening the Chamber, but that he had been raising
an extremely dangerous monster, Aragog the giant spider, in the school: “Ron
gave a loud snort. Evidently, hatching Aragog in a cupboard wasn’t his idea
of being innocent.” Id. at 281.
194. CHAMBER OF SECRETS, supra note 35, at 262. The twelve signatures
are those of the Hogwarts board of governors, who have voted for
Dumbledore’s suspension. Id. at 263.
195. HALF-BLOOD PRINCE, supra note 16, at 221, 331, 346, 649.
197. Interesting parallels could be drawn between the witch-trials in THE
CRUCIBLE and in Harry’s world, and hopefully will be – but not in this article.
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apparently rightly; although he passed information to a Death
Eater named Rookwood, there seems to be no evidence that he
knew that Rookwood was a Death Eater. (“I thought I was
collecting information for our side!”)198 The main factor in his
acquittal, however, is not the evidence but his popularity as an
athlete: “‘We’d just like to congratulate Mr. Bagman on his
splendid performance for England in the Quidditch match against
Turkey last Saturday,’ the witch said breathlessly.”199
The acquittal of a popular athlete is nothing unusual in the
Muggle world, either. The series is in constant dialogue with the
Muggle world and its texts, usually unobtrusively. During the
Triwizard Tournament’s Second Task, for example, Cedric Diggory
and (especially) Moaning Myrtle teach Harry to hear the
merpeople singing.200 Grown-up readers are likely to be reminded
of The Love Song of J. Alfred Prufrock, especially given the nature
of the Second Task: the rescue of four sleeping hostages from the
merpeople’s village beneath the Hogwarts lake before human
voices wake them, and they drown.201 From there the grown-up
reader’s mind wanders both forward and back: forward to movies
like Till Human Voices Wake Us,202 I Have Heard the Mermaids
Singing203 and Eat the Peach,204 and backward to Eliot’s source,
198.
199.
200.
201.
GOBLET OF FIRE, supra note 7, at 592-93.
Id. at 593.
Id. at 461-64.
Shall I part my hair behind? Do I dare to eat a peach?
I shall wear white flannel trousers, and walk upon the beach.
I have heard the mermaids singing, each to each.
I do not think that they will sing to me.
I have seen them riding seaward on the waves
Combing the white hair of the waves blown back
When the wind blows the water white and black.
We have lingered in the chambers of the sea
By sea-girls wreathed with seaweed red and brown
Till human voices wake us, and we drown.
T.S. ELIOT, “The Love Song of J. Alfred Prufrock” (excerpt), in PRUFROCK AND
OTHER OBSERVATIONS (2001).
202. TILL HUMAN VOICES WAKE US (Globe/Paramount 2003); see also LEWIS
SHINER, “Till Human Voices Wake Us,” in THE EDGES OF THINGS (1991).
203. I’VE HEARD THE MERMAIDS SINGING (Miramax 1987); see also, e.g.,
MRS. STEVENS HEARS THE MERMAIDS SINGING (Mrs. Stevens Productions
2004); THE MERMAIDS SINGING (New Films International, forthcoming 2006).
204. EAT THE PEACH (Bórd Scannán na hÉireann/Strongbow 1986). None
of this is particularly productive, perhaps, but such, often, is intertextuality.
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John Donne’s Song, 205 which is also the first thing younger
readers are likely to be reminded of – not only because John
Donne is as much a middle-school staple as Eliot is a high school
and beginning college English class cliché, but also because the
poem plays such a large part in the 1986 children’s novel Howl’s
Moving Castle.206
Barty Crouch Jr. and his co-conspirators were convicted
before the Wizengamot in a trial at which Barty Crouch Sr.,
despite the glaring conflict of interest inherent in participating in
the trial of his own son, acted as a sort of combination of
prosecutor and sentencing judge.207 Again, the result turned out,
in retrospect, to have been correct; the defendants had in fact
committed the crime of which they were accused. However, the
irregularities in the proceedings are worrisome.
Years later Harry is tried in the same courtroom, before the
full Wizengamot, for “a simple matter of underage magic[.]”208 He
sits in the same seat where he has seen the accused Death Eaters
sit, although on this occasion “the chains clinked rather
threateningly but did not bind him.”209 Some of the irregularities
in this proceeding disturb even the wizards. The time of the
hearing is changed with no effective notice, apparently to prevent
the participation of witnesses for Harry’s defense. The venue of
the trial, and the participation of the full Wizengamot, shock
Arthur Weasley.210 Dumbledore comments that:
205.
Go, and catch a falling star,
Get with child a mandrake root,
Tell me, where all past years are,
Or who cleft the devil’s foot,
Teach me to hear mermaids singing,
Or to keep off envy’s stinging,
And find
What wind
Serves to advance an honest mind.
John Donne, “Song” (excerpt), in THE OXFORD BOOK OF ENGLISH VERSE: 1250–
1900 (Arthur Quiller ed. 1919), available at http://www.bartleby.com/101/
196.html (last visited June 10, 2005, the U.S. release date of Hayao
Miyazaki’s animated film version of HOWL’S MOVING CASTLE (Studio Ghibli
2004). See also infra note 206.
206. DIANA WYNNE JONES, HOWL’S MOVING CASTLE 134 (1986).
209. Id. at 138.
210. Id. at 134-35, 153.
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“In your admirable haste to ensure that the law is upheld,
you appear, inadvertently I am sure, to have overlooked a
few laws yourself.”
***
“[Y]ou certainly seem to be making many changes,
Cornelius. Why, in the few short weeks since I was asked
to leave the Wizengamot, it has already become the
practice to hold a full criminal trial to deal with a simple
matter of underage magic!”211
When Dumbledore says this, “[a] few of the wizards. . . shift[]
uncomfortably in their seats.”212
To Muggles, however, even more irregularities appear. Harry
is not represented by counsel; Arthur Weasley is not even
permitted to accompany him to the hearing. Dumbledore shows
up as a witness and ends up acting as an advocate for Harry,
calling another witness213 and offering to call a third.214 But this
is not because Harry has a right to counsel; it is just something
that Dumbledore, very fortunately for Harry, does – despite
Fudge’s efforts to prevent him. Harry’s trial highlights what has
been evident throughout the series: Without lawyers, there can be
no rule of law. Adequate representation makes all the difference
for Harry, as it might have for Buckbeak and even, perhaps,
Sirius Black–especially if an attorney for Sirius could have
prevented or delayed the mind-wiping of the Muggle witnesses.
Not every irregularity is to Harry’s disadvantage; one that
has no effect on the outcome but is nonetheless perplexing is that
Harry–the defendant–is permitted to take his wand to the
hearing. The wand is inspected by a security guard at the
entrance to the Ministry, who then returns it to Harry, permitting
the accused to go armed to his own trial.215
211.
212.
213.
214.
215.
Id. at 149.
Id. at 149.
Id. at 143 (Arabella Figg).
Id. at 148. (Dobby the House-Elf).
Id. at 128.
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3. “Do your lot have the Death Penalty?”216
It is not completely clear that the wizarding world has
followed the lead of the rest of the United Kingdom in abolishing
the death penalty. Certainly a regime that has managed to
overlook such a relatively large fact as the independence of
Ireland might have managed to miss some or all of the various
stages in Britain’s abolition process. Parliament enacted a fiveyear suspension of the death penalty for murder in Great Britain
in 1965.217 This suspension was made permanent for Great
Britain in 1969, although other parts of the United Kingdom
retained it: The death penalty was abolished in Northern Ireland
in 1973,218 while at least one self-governing community, the Isle of
Man, retained it until 1993, although from 1973 to 1993 all Isle of
Man death sentences were commuted by the Home Office.219 The
wizarding world, although not territorially distinct like the Isle of
Man, is perhaps even more self-governing; the Prime Minister is
not the only official of the Muggle government authorized to be
aware of the Isle’s existence.
The death penalty on the Isle of Man was ultimately
abolished by the local government, not by diktat from London.220
The wizarding world could perhaps also have retained the death
penalty had it wished to do so. It retains a de facto death penalty,
and a particularly horrible one at that: the Dementor’s Kiss. It
also retains the right to execute at least some non-human magical
creatures, even when those creatures are sentient and freewilled.221 Buckbeak the hippogriff, after inflicting a minor injury
216. “Well?” said Uncle Vernon. . . “What now? Have they sentenced you
to anything? Do your lot have the death penalty?” he added as a hopeful
afterthought. Id. at 33.
217. Murder (Abolition of Death Penalty) Act 1965; 793 H of C Official
Report (5th series) 16 December 1969 col. 1297; 306 HL Official Report (5th
Series) 18 December 1969 col. 1321.
218. Amnesty International, UK Abolishes Death Penalty Completely and
Signs up to a Permanent Ban, n.d., http://www.amnesty.org.uk/action/
camp/dp/intro/uk.html (last visited Nov. 21, 2005).
219. Peter W. Edge, The Law and Practice of Capital Punishment in the
Isle of Man, Lancashire Law School Occasional Papers (1998), available at
http://www.uclan.ac.uk/facs/class/legalstu/occpprs/edge1.htm (last visited
Nov. 21, 2005).
220. Id.
221. The distinction between “beings” and “beasts” is, by the wizarding
world’s own admission, arbitrary. See, e.g., SCAMANDER, supra note 80, x-xiii,
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on a human,222 is given both a trial223 and an appeal.224 An
executioner (Macnair) attends the appeal and is then sent to
behead Buckbeak;225 the Minister, Fudge, accompanies him to
read the official notice of execution, which Hagrid (Buckbeak’s
“owner”) must sign.226
The trial of Buckbeak forms a subplot running through the
third novel; Buckbeak, an animal, seems to receive far more in the
way of due process than the humans we see sent to Azkaban. It
does no good, though, perhaps in part because his legal team
consists only of Hagrid, Ron, and the brilliant but inexperienced
Hermione. Buckbeak loses both at trial and on appeal, and
escapes execution only with the (unlawful) aid of Harry and
Hermione.
In the United Kingdom, the death penalty for ordinary
offenses was effectively abolished before Harry was born. From
1965 until 1998, the death penalty could be imposed, theoretically,
for certain wartime offenses: Serious Misconduct in Action,
Communicating with the Enemy, Aiding the Enemy or Furnishing
Supplies, Obstructing Operations or Giving False Air Signals, and
Mutiny, Incitement to Mutiny or Failure to Suppress a Mutiny.227
The wizards’ war between the Ministry and Voldemort provides
opportunities to commit these offenses, raising the thorny
question of Harry Potter chronology. There are two contending
schools of thought; one dates all events in the books from Nearly
th
Headless Nick’s 500 deathday party in Harry’s second year. 228
The cake at Nick’s party reads:
SIR NICHOLAS DE MIMSY-PORPINGTON
DIED 31ST OCTOBER, 1492229
1-2, 6, 25, 28-29, 39.
222. PRISONER OF AZKABAN, supra note 47, at 118.
223. Id. at 290-92.
224. Id. at 292, 316, 323, 325.
225. This startles Hermione, whose expectations of justice may be Muggleinfluenced: “They’re bringing the executioner to the appeal! But that sounds
as if they’ve already decided!” Id. at 316.
226. Id. at 400-01.
227. Amnesty International, UK Abolishes Death Penalty Completely and
Signs up to a Permanent Ban, undated, http://www.amnesty.org.uk/action/
camp/dp/intro/uk.html (last visited Nov. 21, 2005).
228. CHAMBER OF SECRETS, supra note 35, at 129.
229. Id. at 133.
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If Harry is a second-year student in 1992, the reasoning goes,
he must be a sixth-year student in 1996. The ghosts’ calendar
skills are called into question, however, by Nick’s comment to
Harry when they first meet: “I haven’t eaten for nearly four
hundred years[.]”230 An alternate approach is to assume that the
ghosts are incorrect (or that a few years more or less, out of five
centuries, make little difference to them) and to date everything
from the year of publication of the first volume (1997), in which
case Harry begins his sixth year in 2002.231 Emotions can grow
heated in discussions of the topic, but in this case it can be
sidestepped. Nothing in the books suggests that any of the
characters are subject to military law, or that the Ministry
possesses any military force or military courts. The Ministry’s
elite police force, the Aurors, are law enforcement officers, not
soldiers. But extrajudicial killings, not just of Beasts but of
Beings and even of humans, seem disturbingly frequent.
V. CONCLUSION
Harry Potter’s story is not just about law, but about a society
trying to establish a rule of law. The Ministry of Magic is not a
dictatorship, but it is not a democracy, either; it’s a sort of
muddling misrule that has grown out of the first war against
Voldemort’s Death Eaters. Under that stress, the Ministry regime
adopted an ad hoc and inconsistent approach to justice, just as
some Muggle governments have done under similar stress. The
Ministry never recovered, or perhaps there was never a rule of law
in the wizarding world in the first place; in the years of peace
since Voldemort’s downfall, it has failed to build working legal
structures. Now the Ministry is under stress again, and even the
good guys–Dumbledore’s Order of the Phoenix and Harry’s school
friends–seem to follow personalities rather than rules.
These failings of the Ministry and the Order are not glossed
over; they are presented with concern. An entire generation,
perhaps many generations, of future lawyers, litigants,
231. A more eclectic approach dates events from the Quidditch World Cup
just before the beginning of Harry’s fourth year, on the assumption that
parallels between the Quidditch World Cup and the 1994 football (soccer)
World Cup mean that the former also took place in 1994. See Hall, supra
note 3, 161-62 n.32.
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lawmakers, judges, jurors and citizens is confronting these
questions. What is the rule of law? Should it be absolute? What
limits should be placed on government and private power? When
is it right to disobey not only unjust laws, but just ones? Will the
author present us with answers in the final volume, or only with
more questions? The latter will almost certainly be more useful to
the reader than the former; we have already seen that the
Ministry’s regime is not one to emulate, but ultimately each
society, and perhaps each generation, must re-create the rule of
law for itself.
EBERLE
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Law and Poetry
Edward J. Eberle* and Bernhard Grossfeld**
I. INTRODUCTION
Law and poetry have a curious but intriguing relationship
with one another. They have much in common, perhaps more
than is generally appreciated. Both are human creations of
imagination and ingenuity, communicate their essence through
language, provide order, form and structure to a dizzying array of
phenomena present in daily life, and reflect and reshape the
culture from which they arise. In these ways, law and poetry offer
insight and understanding into the human condition.
But law is not poetry (although lawyers can be poetic)1 and
poetry is not law (although poets can be “legislators”).2 The
*
Professor of Law, Roger Williams University.
** Emeritus Professor of Law, Universität Münster, Germany. All
translations are ours unless otherwise noted. Copyright 2005, by Edward J.
Eberle and Bernhard Grossfeld. All rights reserved. We would like to thank
Jennifer Maio for her valuable research assistance and Nancy Cook,
Christopher Davidson and Mel Topf for their valuable comments on a draft of
this article.
1. Consider the handiwork of Justice Benjamin Cardozo:
A trustee is held to something stricter than the morals of the
market place. Not honesty alone, but the punctilio of an honor the
most sensitive, is then the standard of behavior. . . . Only [by the
uncompromising rigidity of courts of equity] has the level of conduct
for fiduciaries been kept at a level higher than that trodden by the
crowd.
Meinhard v. Salmon, 164 N.E. 545, 546 (N.Y. 1928). “No answer is it to
say that the chance would have been of little value even if seasonably offered.
Such a calculus of probabilities is beyond the science of the chancery.” Id. at
547.
2. As Percy Shelley stated, “Poets are the unacknowledged legislators
of the world.” PERCY SHELLEY, A DEFENSE OF POETRY 46 (Albert S. Cook ed.,
Ginn & Co. 1891).
353
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domain of law is more the domain of abstract reason, offering
structure and rules to the members of a society. The domain of
poetry is more the domain of imagination, offering inspiration and
insight into life. We might say that law partakes more of science,
poetry more of art.
Yet, while law and poetry are different, there is something
intriguing about the relationship between them. Many lawyers
are poets, including such two-world figures as Wallace Stevens,
Edgar Lee Masters, William Cullen Bryant, e.e. cummings,
Archibald Macleish and Lawrence Joseph, to name a few
American poet-lawyers. German poets such as Johann Wolfgang
von Goethe, Friedrich von Schiller, Novallis (Friedrich von
Hardenberg) and Bernd Heinrich Wilhelm von Kleist studied law,
and Goethe even worked as a young assistant at the
Reichskammergericht in Wetzlar. Many poets have worked the
theme of law into their poetry, including Chaucer, Shakespeare,
Pope, Shelley and Sandburg.
So, the question is: What about the relationship of law and
poetry? Does poetry inform law? Does law inform poetry? These
questions are worth asking and pursuing because we as lawyers
know that there is a range of phenomena and forces that
influences and drives a culture on which law sits. The words (or
ABCs) of law are just the bare statements of ideas or rules that,
like the skin of a piece of fruit, gain real meaning only from
interaction with the culture in which they operate. In this
respect, we might think of law, especially its words, as the
software which can function effectively only within the operating
system of a culture.
The Hidden Law does not deny
Our laws of probability,
But takes the atom and the star
And humans for what they are,
And answers nothing when we lie.
It is the only reason why
No government can codify,
And verbal definitions mar
The Hidden Law.3
3. W. H. AUDEN, The Hidden Law, in AUDEN: POEMS 90 (Edward
Mendelson ed., 1995). For consideration of this theme, see generally
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It is difficult to understand a culture because a culture
consists of a wide array of forces that operate both above and
below a person’s ken, somewhat like rowing a boat on the ocean,
above which is the sky, below which is the deep. Culture exerts a
significant influence on law. It is a fair question whether law
drives culture or culture drives law. Probably, it is a bit of each.
We may never know, in fact, the answer to such foundational
questions. But we can obtain insight into a culture by examining
the forces that infuse it. And that brings us back to poetry.
Poets are prime barometers of culture, voicing its dreams,
visions, hopes, aspirations or despairs. Uniquely situated within a
culture, a poet offers a silhouette of the human condition in a
given time-space relationship, what we might call the period or
genre of the poet. The work of poets offers some of the raw stuff of
culture, forming the rudiments or working materials that occupy
law.
We know that any culture constitutes a complicated fusion of
forces and phenomena that help drive and integrate law, giving it
form and substance. Law is in a continual state of action and
reaction to these phenomena, attempting to make sense and lend
structure to people in the complicated enterprise of living. There
is a range of phenomena that exert this effect, including history,
tradition, language and geography, to name a few.
These
phenomena are worth studying to try to account for the
complicated process of law-making – of giving order and structure
to a society.
This bring us to the purpose of our article: to study and
evaluate poetry as one of the phenomena that influences and helps
shape law. We make no claim to understand the totality of the
relationship between law and poetry. Rather, our goal is to
examine some part of the relationship so that we can achieve a
better understanding of the synergy between law and poetry, a
relationship with important implications for law.
There is much, of course, that law and poetry have in
common. First, law and poetry both trade in language, language
being the constitutive force of each, giving the two disciplines life
and dynamism. Language has a pervasive effect on the world it
describes. Second, law and poetry both give shape and order to
BERNHARD GROSSFELD, POESIE UND RECHT (2005).
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the phenomena that confront the human condition. Third, law
and poetry are reflective of the human spirit, capturing and
instilling the dreams that animate and constitute us. Part II
examines these commonalities.
Yet, while law and poetry have much in common, they also
differ from one another. Most fundamentally, law is mainly the
product of the intellect, although law, too, tries to capture and
account for human emotion, pathos and even imagination. Poetry,
by contrast, speaks more to man and woman’s imagination and
dreams, although poetry, too, can be logical, ordered or
intellectual. Part III explains some of the differences that
distinguish law from poetry.
Parts IV and V probe the interrelationship between law and
poetry by tracing the sphere of influence that law exerts on poetry,
and poetry on law. Law is a common theme of poetry, which Part
IV surveys. But surprisingly, perhaps, poetry exerts influence on
law as well, as Part V shows. We must more fully open our eyes
and senses to discern this influence, which operates sometimes in
discrete, unobvious ways.
Finally, in Part VI, we assemble the insights gathered from
our investigation to reach greater understanding of the
complicated synergy between law and poetry. Understanding the
raw ingredients of culture helps direct us to the forces and
influences that constitute a culture and on which the letters of law
sit. Investigating this deeper perspective of culture is an urgent
project as we try to understand the nature and limits of a legal
system. Only by understanding a culture can we understand a
legal system. Studying poetry is a direct insight into culture, as
poets acutely reflect the human condition in a given time-space
relationship. We need to open our senses and use our imagination
if we are to truly understand the role law plays in culture.
II. SIMILARITIES
A. Language as Meaning-Making
Law and poetry are fundamentally similar in important ways.
Most importantly, law and poetry have language in common.
Both disciplines communicate their meanings, aspirations, rules
and import through language. The study of law and poetry is, in
crucial ways, the study of language.
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The study of language is, as we know, not easy. Language is
the complicated process of giving expression to ideas, emotions,
rules or other qualities. Language is the process of meaningYet, the meaning of language can be elusive.
making.4
Sometimes language is clear. For example, the United States
Constitution states that a person must be thirty-five years of age
to qualify as President.5 Similarly, in his poem, Beat! Beat!
Drums!, Walt Whitman opens:
Beat! beat! drums! – blow! bugles! blow!
Through the windows – through the doors – burst like a
ruthless force,
. . . .Make even the trestles to shake the dead where they lie
awaiting the hearses,
So strong you thump O terrible drums – so loud you bugles
blow.6
Whitman uses the drum and bugle to sound clearly the cry of
war pulsing through the nation, calling for the recruitment of
soldiers who would need to set aside their normal lives to take up
the cause of the Union during the United States Civil War (18611865).
But language can also be ambiguous. For example, the
United States Constitution also states that Congress shall have
the power “[t]o regulate Commerce . . . among the several states.”7
What commerce actually means depends on a given time-space
relationship, a given historical time as determined by the readers
or interpretive community of that time. In the early nineteenth
century, under the leadership of Chief Justice John Marshall,
commerce meant broad federal powers to regulate commerce in
the national interest; almost any commodity was commerce.8
Later, toward the end of the nineteenth century, commerce meant
a narrower federal power only over goods that flowed in interstate
4. JAMES BOYD WHITE, HERACLES’ BOW: ESSAYS ON THE RHETORIC AND
POETICS OF THE LAW 39-40 (1985). See generally Gary Minda, Cool Jazz But
Not So Hot Literary Text in Lawyerland: James Boyd White’s Improvisations
of Law as Literature, 13 CARDOZO STUDIES IN LAW AND LITERATURE 157 (2001).
5. U.S. CONST. art. II, § 1, cl. 4.
6. WALT WHITMAN, Beat! Beat! Drums!, in WALT WHITMAN: THE
COMPLETE POEMS 308 (Francis Murphy ed., 1986).
7. U.S. CONST. art. I, § 8, cl. 3.
8. See, e. g., Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824).
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commerce.9 Then, in the New Deal era of the mid-twentieth
century, commerce meant, again, broad powers as Chief Justice
Marshall had intended; no Congressional regulation of commerce
was found unconstitutional under the rubric applied determining
whether an item substantially affected commerce.10 Today,
commerce again has a restrictive definition, sharpening what is
commerce as compared to noncommerce–a definition more in
keeping with the meaning of the term at the end of the nineteenth
century.11 The meaning of commerce varied over time with the
different senses and perspectives of the operative interpretive
community.
Consider an excerpt from a poem by Wallace Stevens:
Twenty men crossing a bridge,
Into a village,
Are twenty men crossing twenty bridges,
Into twenty villages,
Or one man
Crossing a single bridge into a village.12
The meaning of commerce is no more self-evident than the
meaning of bridge-crossing in Stevens’s poem. A reader could
associate a range of meanings for either set of words. A difference
between the Constitutional definition of commerce and the poem
is that the former derives a more precise meaning from an
authoritative interpreter, the United States Supreme Court,
whereas the latter is intentionally left open for meaning according
to the imagination and sense of the reader. We will speak to this
difference later.
The point here is that language consists of a complicated
process of rendering meaning, of meaning-making, that is
dependent on an exchange of meaning from speaker/writer to
listener/reader.
Stevens captures the dynamics of this
relationship well in his poem, Six Significant Landscapes:
I
An old man sits
In the shadow of a pine tree
9. See, e g., United States v. E. C. Knight Co., 156 U.S. 1 (1895).
10. See, e.g., Wickard v. Filburn, 317 U.S. 111 (1942).
11. See, e.g., United States v. Lopez, 514 U.S. 549 (1995).
12. WALLACE STEVENS, Metaphors of a Magnifico, in THE COLLECTED
POEMS OF WALLACE STEVENS 19 (1990).
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In China.
He sees larkspur,
Blue and white,
At the edge of the shadow,
Move in the wind.
His beard moves in the wind.
The pine tree moves in the wind.
Thus water flows
Over weeds.
...
III
I measure myself
Against a tall tree.
I find that I am much taller,
For I reach right up to the sun,
With my eye;
And I reach to the shore of the sea
With my ear.
Nevertheless, I dislike
The way the ants crawl
In and out of my shadow.
...
VI
Rationalists, wearing square hats,
Think, in square rooms,
Looking at the floor,
Looking at the ceiling.
They confine themselves
To right-angled triangles.
If they tried rhomboids,
Cones, waving lines, ellipses—
As, for example, the ellipse of the halfmoon–
Rationalists would wear sombreros.13
Our short exercise in language illustrates how language is
contingent on words situated within specific time-space relations.
The meaning of words seems largely dependent on the time-space
13. WALLACE STEVENS, Six Significant Landscapes, in THE COLLECTED
POEMS OF WALLACE STEVENS, supra note 12, at 73-75.
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contingency of a specific culture. In this sense, culture is highly
constitutive of language. For native law, the consequences are not
so dramatic, for understanding one’s own culture comes naturally.
For comparative law, however, the consequences are great.
Understanding a culture is highly dependent on understanding its
language, as language is a portal into a society. It is hard to
understand a culture without understanding its language.
B. Language As an Ordering Mechanism
A second relation of law and poetry concerning language is
that language is the means used by the author to shape and order
his or her world of experience. Human being and its condition is
complicated, as any person confronts daily a multitude of
phenomena. Language helps shape and order, rendering meaning
to what would otherwise be the chaos of bewilderment presented
by diverse phenomena. Language is a primary means by which
we order and make sense of our world. Again, we can look to
Wallace Stevens in his famous poem, The Idea of Order at Key
West:
She sang beyond the genius of the sea.
The water never formed to mind or voice,
Like a body wholly body, fluttering
Its empty sleeves; and yet its mimic motion
Made constant cry, caused constantly a cry,
That was ours although we understood,
Inhuman, of the veritable ocean.
...
It was her voice that made
The sky acutest at its vanishing.
She measured to the hour its solitude.
She was the single artificer of the world
In which she sang. And when she sang, the sea,
Whatever self it had, became the self
That was her song, for she was the maker. Then we,
As we beheld her striding there alone,
....
Oh! Blessed rage for order, pale Ramon,
The maker’s rage to order words of the sea,
Words of the fragrant portals, dimly-starred,
And of ourselves and of our origins,
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In ghostlier demarcations, keener sounds.14
We might consider attorney-poet Archibald Macleish’s
description of the interelationship between law and poetry:
The business of the law is to make sense of the confusion
of what we call human life—to reduce it to order but at
the same time to give it possibility, scope, even dignity.
But what, then, is the business of poetry? Precisely to
make sense of the chaos of our lives. To create the
understanding of our lives. To compose an order which
the bewildered, angry heart can recognize. To imagine
man.15
Or, as Jacob Grimm, of fairy-tale fame, stated, “poetry and
law have risen from the same bed.”16
Let us consider some examples. A constitution helps to order
and give meaning to the character of a people as a contract does
for the people who enter into it. In the United States, Americans
believe themselves to be endowed with a large measure of liberty.
That character attribute might owe a large part of its life to the
American Constitution’s empowerment of personal liberty. We
might refer to the American Constitution as a “constitution of
liberty.”17 And, whether liberty is actually realized in the social
order or not, Americans believe themselves to be uniquely
endowed with the blessings of liberty.
The words of the German national anthem stress “Einigkeit
und Recht und Freiheit” (“Unity, Justice and Freedom”),18 new
words to an old song (Franz Josef Hayden’s Kaiserquartett) to
emphasize the new German order after World War II, an order
anchored in a constitution of the dignity of man.19 Commitment to
14. WALLACE STEVENS, The Idea of Order at Key West, in THE
COLLECTED POEMS OF WALLACE STEVENS, supra note 12, at 128-30.
15. Archibald MacLeish, Apoligia, 85 HARV. L. REV. 1505, 1508 (1972).
16. Jacob Grimm, Von der Poesie im Recht, 2 ZEITSCHRIFT FÜR
GESCHICHTLICHE RECHTSWISSENSCHAFT 25 (1816).
17. Edward J. Eberle, Dignity and Liberty: Constitutional Visions in
Germany and the United States 17 (2002).
18. NATIONAL ANTHEM OF THE REPUBLIC OF GERMANY, available at
http://www.germany-info.org/relaunch/info/facts/anthem.html (last visited
Nov. 22, 2005).
19. The architectonic value of the German Basic Law is human dignity,
which Article One of the Basic Law makes manifest. Grundgesetz für die
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dignity might ward against the darker evils of mankind. In fact, it
seems the experiment has been successful during the time of the
Basic Law’s control. The French national anthem, La Marseillaise,
was the rallying cry of the revolutionary break with the ancien
regime, a new order following the words Egalité, Fraternité,
Liberté that revolutionized European society.
The ongoing, ever-increasing unification of the European
peoples under the umbrella of the European Union is symbolized
by its anthem, containing the stirring words of Schiller’s Ode to
Joy (1785), written around the time of the ferment of the French
Revolution, and set by Beethoven to the music of his Ninth
Symphony, a common poetic song. Schiller’s poem expresses the
ideal of people becoming brothers, a fitting ideal for the European
Union:
Freude, schöner Götterfunken,
Tochter aus Elysium,
Wir betreten feuer-trunken,
Himmlische, dein Heiligtum!
Deine Zauber binden wieder,
Was die Mode streng geteilt;
Alle Menschen werden Brüder,
Wo dein sanfter Flügel weilt.
(Joy, fair spark of the gods,
Daughter of Elysium,
Drunk with fiery rapture, Goddess,
We approach thy shrine!
Thy magic reunites those
Whom stern custom has parted;
All men will become brothers
Under thy gentle wing.).20
The ordering of words can give meaning to people’s dreams.
In this, the Europeans were following Schiller’s original
inspiration to Beethoven. Beethoven fancied and thought about
Schiller’s Ode to Joy for over thirty years, trying various
Bundesrepublik Deutschland [GG] [Basic Law of the Federal Republic of
Germany] art. 1, available at http://www.bundesregierung.de/static/pdf/
GG_engl_Stand_26_07_02.pdf (last visited Nov. 22, 2005).
20. Friedrich von Schiller, An die Freude (Ode to Joy), in GEDICHTE 28
(1972), available at http://w3.rz-berlin.mpg.de/cmp/beethoven_sym9.html
(last visited Nov. 9, 2005).
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compositions, before finally settling on the famous Ninth
Symphony, itself a novel creation of part symphony, part
oratorio.21
Poetry, of course, is no different. Wallace Stevens reminds us
that we form our view of the world by singing against the chaos,
by using the algebraic, tonal and rhythmic power of language to
form structure out of chaos and patterns useful to living.
Consider, again, an excerpt from his poem, The Idea of Order at
Key West:
She was the single artificer of the world
In which she sang. And when she sang, the sea,
Whatever self it had, became the self
That was her song, for she was the maker.22
As Stevens illustrates, poetry is a strong force that
establishes patterns of living. The elaborate structure of poetry
lends order to the collected experience. Metrical rhythms make
people join as they feel comforted and secure, sensing that
something is in order.
Ancient law often took the form of poetry.23 Laws were
expressed in incantatory rhythms. The oldest Greek and Latin
words for poetry were also the eldest words for law. For example,
carmen or carminis in Latin means song or statute. Resort to
repetition and rhythm to impart law was especially important
where enforcement authority was weak.24 Poetry could act
somewhat like a magic flute, inducing respect and acceptance
through the spiritual power of the word. We can thus see another
dimension to the idea of poets being the “unacknowledged
legislators of the world.”25
C. Language As Structure: Metaphor
Third, because law and poetry both involve language,
21. LUDWIG VON BEETHOVEN, Symphony No. 9, Op.125 “Choral”,
available at http://w3.rz-berlin.mpg.de/cmp/beethoven_sym9 (last visited Nov.
9, 2005).
22. STEVENS, supra note 14, at 128, 129.
23. THOMAS HOBBES, LEVIATHAN 189 (Richard Tuck ed., 1991) (“And in
ancient time, before letters were in common use, the Lawes were many times
put into verse, that the rude people taking pleasure in singing, or reciting
them, might the more easily reteine them in memory.”).
24. See id.
25. SHELLEY, supra note 2, at 46.
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language itself is at issue. We might then observe that language
is words, but is also made from more rudimentary concepts, such
as structure, grammar, syntax, word choice, alliteration,
assonance, consonance, dissonance, metaphor and other building
blocks. These rudiments of language are keys to the meaning of
words.
Words represent only the surface manifestation of
meaning. Equally, or perhaps more revealing of expression, are
the rudiments that underlie words. Given this common clay of
language—these lumps of expression—studying language is
significant for both the lawyer and the poet. Studying language
helps uncover its structure, shedding insight into its origins,
meaning and impulse.
For example, let us consider metaphor. Metaphor is, of
course, the essence of poetry. Metaphor comes from the Greek
and means, literally, to transfer or to carry over. In the medium
of language, metaphor (or carrying-over) means to transpose
meaning from one domain to another. Death is the central
metaphor of poetry, as poets strive to transcend the limits of the
human experience and proffer insight into more rarefied
dimensions. Metaphor is omnipresent in poetry. Consider a few
examples:
In Goethe’s An den Mond [To the Moon], he evokes a
mysterious, luminescent world that captivates the human spirit:
Füllest wieder Busch und Tal
Still mit Nebelglanz,
Lösest endlich auch einmal
Meine Seele ganz;
Breitest über mein Gefild
Lindernd deinen Blick,
Wie des Freundes Auge mild
Über mein Geschick.
...
Was von Menschen nicht gewusst
Oder nicht bedacht,
Durch das Labyrinth der Brust
Wandelt in der Nacht.26
(Feel again bush and valley
26. GOETHE, An den Mond (Spätere Fassung), in GOETHE: GEDICHTE
129 (Erich Trunz ed., 1993).
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Quiet with the glance of fog,
Enveloping finally even now
My whole soul;
Broadening over my field
Soothing your view,
Like the mild eyes of a friend
Over my being
....
What from humans is not known
Or not suspected,
Through the labyrinth of the breast
Wanders in the night.).
Here the appeal to the moon would seem to suggest
enlightenment or illumination, as the light of the moon offers light
amidst the night. But the moon is also comforting to the souls
wandering around at night. The moon could also suggest the ideal
form—truth, happiness, goodness and so on—that we desire to
achieve in our lives. These meanings are suggested by the moon,
even though the moon is never mentioned in the poem. The moon
seems to be implicitly directing the structure of the poem.
In The Man With the Blue Guitar, Wallace Stevens uses the
blue guitar as a metaphor for man’s imagination. Consider this
excerpt:
I
The man bent over his guitar,
A shearsman of sorts. The day was green.
They said, “You have a blue guitar,
You do not play things as they are.”
The man replied, “Things as they are
Are changed upon the blue guitar.”
And they said then, “But play, you must,
A tune beyond us, yet ourselves,
A tune upon the blue guitar
Of things exactly as they are.”
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II
I cannot bring a world quite round,
Although I patch it as I can.
I sing a hero’s head, large eye
And bearded bronze, but not a man,
Although I patch him as I can
And reach through him almost to man.
If to serenade almost to man
Is to miss, by that, things as they are,
Say that it is the serenade
Of a man that plays a blue guitar.27
The blue guitar seems to suggest a person’s imagination.
More specifically, it is the imagination of the poet, imagination
being the trade craft of the poet, the means by which the poet
imagines and reimagines the world, playing different tunes on the
blue guitar. But one might think of the blue guitar in other ways
as well. For example, the blue guitar could be the lyre, the
instrument on which the seer sings. Or the blue guitar could be
the tool with which the poet is equipped, as the slide rule is to the
accountant.
There is perhaps no way to comprehend all the meanings of
these metaphors. Instead, a poet leaves the meaning of these
metaphors to be determined by the unique meaning-making
offered by the relationship of the poet to the individual readers.
That is part of the universal appeal of poetry, as poets write for
everyone, and everyone can derive their own meaning.
Law consists of metaphors too, of which the study of poetry
helps inform us. For example, consider the ideals on which
American free speech law is built. We imagine free speech to be a
“free trade in ideas,”28 a search for truth or, as Justice Harlan
observed, a “freedom [to] . . . produce a more capable citizenry and
more perfect polity . . . in the belief that no other approach would
comport with the premise of individual dignity and choice upon
which our political system rests.”29 But we must be frank: these
27. WALLACE STEVENS, The Man With the Blue Guitar, in THE
COLLECTED POEMS OF WALLACE STEVENS, supra note 12, at 165.
28. Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J.,
dissenting).
29. Cohen v. California, 403 U.S. 15, 24 (1971).
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statements are more valuable as ideals (or metaphors) than
actually attainable principles.30 Do we really find truth? Is the
polity really more perfect? Or are these the visions that inspire
us, the metaphors that animate free speech law? German law
operates similarly, setting forth the ideal of a “geistigen
Meinungskampf” [“intellectual struggle of opinions”].31
Consider American tort law, which settles many questions on
the basis of the metaphor of a “reasonable person,”32 a uniform
standard of human behavior, even though there may be no such
person (although some of us think we, or others, can act
reasonably). Or consider the contract law fiction of parties
entering into agreements based upon free and equal bargaining,
connoting a measurement of an equal exchange of value between
the parties.
Often, economic power between the parties
determines outcomes more than freedom or equality. And we
could list many other examples.
The point here is simple: understanding the basis of language
helps us to understand law. The ubiquity of metaphor in poetry
leads to insight into the use of metaphor in law. In both law and
poetry, metaphor informs language and our understanding of the
world with particular meaning.
D. Human Imagination
A final similarity worth noting between law and poetry is the
most basic: law and poetry are products of human ingenuity and
imagination. They are human expressions of meaning. As such,
they reflect human personality and the human condition. For,
when all is said and done, the reality we live is the reality our
minds see and that upon which we act.
The intuitions,
perceptions and senses in our mind form our reality. We can take
a lesson from poetry. Poetry aims to reflect reality, but more
significantly to form reality, as for example in Stevens’s poem, The
Man With the Blue Guitar.33 But reality-making is also the aim of
30. Edward J. Eberle, Hate Speech, Offensive Speech, and Public
Discourse in America, 29 WAKE FOREST L. REV. 1135, 1179 (1994).
31. Lüth, 7 BVerfGE 198, 208 (1958). For an examination of German
expression law, see generally Edward J. Eberle, Public Discourse in
Contemporary Germany, 47 CASE W. RES. L. REV. 797 (1997).
32. RESTATEMENT (SECOND) OF TORTS § 283, at 12 (1965).
33. STEVENS, supra note 12, at 1510.
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law. For example, there is a world of difference between living the
reality of a constitution of liberty (USA), a constitution of dignity
(Germany) or a constitution of Islamic fundamentalism (e.g.,
Saudi Arabia). Reality, like poetry, like law, in significant part is
what we imagine it to be. We might think of law and poetry as
different paths along the same journey, as Archibald MacLeish
observed: “The law has one way of seeing it. Poetry has another.
But the journey is the same.”34 Or, as he stated, “though the
words are the same, the tunes are distinguishable.”35
III. DIFFERENCES
While the common bond of language is one that links law and
poetry in powerful ways, we must not overemphasize their
similarities, but frankly acknowledge their differences. There are
two main differences worth observing: first, law is a science,
whereas poetry is an art; and, second, each has a different relation
to power.
A. Science versus Art
Law and poetry are different uses of the human mind in
service of similar ideals. For the most part, legal reasoning
partakes of the rational, logical or analytical aspect of the mind.
In this respect, we might characterize law as a science. By
contrast, poetry usually partakes of the intuitive, sensory aspect
of the mind. We might say poetry illustrates what lies at the
border of logic. Poetry offers us visions and sensory perceptions in
ways apart from abstract logic, such as through pictures, images
or visions. We might, therefore, characterize poetry as a form of
art. Let us describe this difference more carefully.
When we say law is a science, we mean judgments of law
operate within a set of established rules that form a field or
pattern in which legal reasoning takes place. Rules of law are
established in constitutions, statutes, regulations, cases and the
like. These rules serve as a benchmark against which a legal
question must be measured to determine resolution of the matter.
Legal questions are, in this way, rule-bound.
Poetry is different. Judgments of poetry are not generally
34. MacLeish, supra note 15, at 1510.
35. Id. at 1506.
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made within the context and constraints of rules. Instead, poetry
involves the free use of imagination or intuition, unencumbered by
the discipline of rules. In this sense, poetry is an act of the free
reign of the mind. In this way, we can characterize poetry as art,
not science.
Immanuel Kant described this difference well. In his third
critique, Critique of the Power of Judgment,36 Kant provides an
account of aesthetic judgment—judgment of beauty or art.37 Kant
distinguishes between judgments of art and judgments of science
in a way we find quite useful in distinguishing law from poetry.
Judgments of beauty involve the faculties of imagination and
creation. These judgments are free in the sense that they are not
subject to a rule to which they must conform. There is no rule for
determining whether something (e.g., a poem, painting or
sculpture) is or is not beautiful.38 That is why judgments of
beauty cannot be resolved definitively or “scientifically.” Instead,
they are free, “disinterested and ruleless, unconstrained . . . by . . .
appetite” or the demands “of a master concept to which they must
conform.”39 Thus, aesthetic judgments partake of the exhilaration
of freedom, which “is the source of the pleasure to which
judgments of beauty refer.”40 In this way, aesthetic judgments are
a way to partake of the “pleasure of freedom itself.”41
This sense of freedom, according to Kant, is a person’s “feeling
of life,”42 “the pleasurable experience of being an active, living
being endowed with a freedom that transcends the world.”43 It is
a “power of free creativity,”44 unbound by rules. This is the
essence of artistic invention, the heart of the enjoyment of the
power itself.45
36. IMMANUEL KANT, CRITIQUE OF THE POWER OF JUDGMENT (Paul Guyer,
trans., Cambridge 2000) (1790).
37. See id. at 23-24.
38. Anthony T. Kronman, Is Poetry Undemocratic?, 16 GA. ST. U. L.
REV. 311, 319-24 (1999). This Part relies, in part, on Kronman’s article.
39. Id. at 324.
40. Id.
41. Id.
42. Id. (quoting IMMANUEL KANT, CRITIQUE OF JUDGMENT 38 (J.H.
Bernard trans., Hafner 1951) (1790).
43. Kronman, supra note 38, at 324-25.
44. Id. at 325.
45. Id. at 324.
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By contrast, a scientific judgment, by definition, must conform
to a rule. The field determines the rule. In law, rules are set by
the lawgivers—legislators, courts, agencies and the like. The
range of legal rules present in law forms the legal field within
which legal judgments must operate. That is what we mean by
the rule of law.
Of course, life being what it is with all its complication, no
rule applies completely in all respects. Within the rules of law
there are some acts of “free play,” judgments necessary to settle a
case. The Supreme Court acknowledged as much in Planned
Parenthood of Southeastern Pennsylvania v. Casey.46 Consider
the statements of the German Constitutional Court in the Soraya
case: “Law is not synonymous with the totality of written
statutes.”47 Under some circumstances, law can include additional
concepts derived from “the constitutional order as a whole” and
“functioning as a corrective to the written law.”48 Thus, rather
than being “bound by the strict letter of the law, the role of the
judge is to realize in case law . . . the values immanent in the
constitutional order, [even if] not written or clearly expressed in
written law.”49 Judges should fill in statutory gaps based on
“practical reason” and “well-founded general community concepts
of justice.”50 Note Karl Llewellyn’s famous observation that the
role of the judge, when confronted with an act of judgment, is to
apply his “situation-sense.”51
46. “The inescapable fact is that adjudication of substantive due
process claims may call upon the Court in interpreting the Constitution to
exercise that same capacity which by tradition courts have always exercised:
reasoned judgment.” 505 U.S. 833, 849 (1992).
47. 34 BVerfGE 269, 286-87 (1973).
48. Id. at 287.
49. Id.
50. Id.
51. KARL N. LLEWELLYN, THE COMMON LAW TRADITION: DECIDING
APPEALS 268-85 (1960) (judges should apply common sense, respect
precedent, and sense the needs of society in deciding cases). As Llewellyn
explains:
[T]he sizing up of “the case” into some pattern is of the essence
of getting to the case at all, and the shape it starts to take calls up
familiar, more general patterns to fit it into or to piece it out or to set
it against for comparison. This much, as we all know, is not a
matter of method or of desire, it comes close to being a matter of
necessity, it is the way the normal human mind insists on working
most of the time. What is not necessity is that the courts should
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Likewise, some poetry must conform to rules. For example,
consider poems that rhyme or follow the three-line, seventeen
syllable (5/7/5) format of the haiku. “Sashay down the page/
through the lioness/ nestled in my soul”; “Imagine now and sing/
creating myths/ forming jewels from the falling snow”; “You broke
my soul/ the juice of eternity/ the spirit of my lips.”52 Poems like
these exercise the act of “free-play” within the constraints of rules.
Or consider the fourteen-line sonnet, dating at least to the
fourteenth century in Italy, and made famous by Petrarch.53
Shakespeare and others from the Elizabethan Age famously
employed the form:
Let me not to the marriage of true minds
Admit impediments; love is not love
Which alters when it alteration finds,
Or bends with the remover to remove.
O no, it is an ever-fixed mark
That looks on tempests and is never shaken;
It is the star to every wand’ring bark,
Whose worth’s unknown, although his height be taken.
Love’s not Time’s fool, though rosy lips and cheeks
Within his bending sickle’s compass come;
Love alters not with his brief hours and weeks,
But bears it out even to the edge of doom.
If this be error and upon me proved,
I never writ, nor no man ever loved.54
Beauty can be artfully expressed within the framework of a
wind up accepting any particular legal category as the controlling
pattern unless it proves to be a category with sense-significance as
well as doctrinal significance, or without looking around for other
possibly more significant ways to type the problem.
Id. at 268-69.
52. GROSSFELD, supra note 3, at 54 (quoting Teresa Riordan, Investor
Creates Software That Can Turn a Computer into Cyberpoet, N.Y.TIMES, Nov.
24, 2003, at C7. Consider some other examples of the haiku. “Heat-lighting
streak–/through darkness pierces/the heron’s shriek.” “In the old stone pool/a
frog jumped:/splishhhhhh.” “Cricket be,/Careful! I’m rolling/Over!”
LITERATURE: AN INTRODUCTION TO FICTION, POETRY AND DRAMA 799 (J.
Kennedy and Dana Groia eds., 9th ed. 2005) [hereinafter “LITERATURE”].
53. LITERATURE, supra note 52, at 917.
54. William Shakespeare, Sonnet No. 116, in THE RIVERSIDE
SHAKESPEARE 1770 (G. Blakemore Evans ed., Houghton Mifflin 1974)
[hereinafter “RIVERSIDE SHAKESPEARE”].
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rule, too.
A further point on Kant’s account of aesthetic judgment is
worth elaborating. Kant’s notion of aesthetic enjoyment partakes
further pleasure in that, in principle, it is universally
communicable to other people in ways similar to the universality
that underlies his philosophical and moral theories.55 Universal
communication of judgments of beauty provides common ground
for all, “a common basis of experience that all human beings
share.”56
Aesthetic judgments (such as those involved in poetry) yield
“the pleasurable sensation produced by the free play of [our]
mental faculties, . . . the spontaneous creativity of mental life.”57
Objects of aesthetic contemplation and the judgments they yield
“stimulate our awareness of this creative power” and invite us to
recognize and share “this same pleasurable power.”58 It is an
aspect of acknowledging “our common humanity”—“the shared
experience of free creativity.”59 The poet and his or her reader
share a bond that forms a basis for shared meanings: the bond of
communicating and sensing life’s feelings.
Each thereby
participates in the universal experience of being human.
B. Power
A second difference between law and poetry worth observing
is their relationship to power. Law operates within a power
structure; poetry does not. Let us explain.
Law is a governing force of society. In the western legal
tradition we are most familiar with, we speak of, the rule of law,
meaning society is organized according to the set of norms
established by the legal process. Thus, acts of law have a direct
coercive effect; citizens must respect them on pain of sanction.
Poetry has no such power. We can be inspired by a poem or
we can be outraged by one, but we do not go to jail if we fail to live
up to its standards. Thus, when Shelley speaks about “[p]oets [as]
the unacknowledged legislators of the world,”60 he is not speaking
55.
56.
57.
58.
59.
60.
See Kronman, supra note 38, at 325-26.
Kronman, supra note 38, at 325.
Id. at 326.
Id.
Id.
SHELLEY, supra note 2, at 46.
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of coercion, but of the poet’s creation of cosmos. It seems fair to
say that poets have inspirational, but not coercive, power.
The same might be said of other actors within the legal
system. Lawyers arguing a case, or scholars expounding a theory,
influence, but do not make, law. In this respect, these legal actors
may be closer to poets than to power legal actors. Scholarly
theorization, in fact, is often more an act of art than an act of
science. While couched in legal words, legal theory can be a form
of “free-play,” unbound by rules as the theory challenges the
convention.
A famous example of creative legal theory is Rudolf von
Jhering’s challenge to the then prevailing German legal
methodology of Pandektenrecht, the German historical school
founded on close study of the principles and methodology of
Roman law made famous by Friedrich Carl von Savigny. In place
of Pandektenrecht, von Jhering postulated a theory of
Interressenjurisprudenz, a jurisprudence of interests,61 which
became the basis for legal realism, the prime influence on the
development of the American school of legal realism. The famous
discussion between Jerome Frank, Roscoe Pound and Karl
Llewellyn captures the American side of the debate.62
IV. THE INFLUENCE OF LAW ON POETRY
As law and poetry are two important exercises of human
ingenuity, employing language to create a new visual reality, it is
logical that they have some influence on one another. The next
two Parts assess that mutual influence. We will start by
describing the influence of law on poetry, then we will turn to
illuminating the influence of poetry on law. This exercise in
mapping will lead us to the crucial question of assessing the
impact of this mutual influence, which we take up in Part VI.
This question has especially important consequences for law
because it forces us to confront basic questions about law, its
relationship to culture, and its influence. What is law, after all?
61. Rudolf von Jhering, Der Kampf ums Recht (1872).
62. See generally Roscoe Pound, The Call for a Realist Jurisprudence,
44 HARV. L. REV. 697 (1931); Karl N. Llewellyn, Some Realism About
Realism–Responding to Dean Pound, 44 HARV. L. REV. 1222 (1931); JEROME
FRANK, LAW AND THE AMERICAN MIND (1930).
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Is law an ordering mechanism or command structure of society,
setting forth operating instructions? The metaphor of the rule of
law would seem to suggest this. Or, alternatively, is law driven by
culture? Is law just a bunch of letters, operating within a semiotic
system, that sit on the surface of a deeper and more complex mix
of phenomena that we refer to as culture, a given time-space
relationship of people set amidst a configuration of events and
forces?
If law is this second alternative, then the influence of poetry
on law is quite significant. Poets, after all, are meaning-makers of
the human condition in a given society. We might think of them
as cultural beacons, singing the hopes, despairs, yearnings or
dreams of a particular slice of life as seen through their ken. We
might think of poets, in this way, as taking “rubbings of reality.”63
“Rubbings of reality” are the unadulterated essence of culture. If,
in fact, culture drives law, then it is worthwhile to pay attention
to what cultural beacons say because the seer can see in ways
transcending the normal condition of people.64 But we are getting
ahead of ourselves. Let us turn first to mapping the influence of
law on poetry, and poetry on law.
A. Poems
Law is a common topic of poetry, and this is no surprise since
law is one of the major forces in society, especially western society.
The fate of an individual is determined in part by law, as law
pervasively affects personal choice. A person situated in western
culture is faced with a plethora of laws which channel and direct
behavior. Because poets reflect and influence the culture in which
they live, it is natural that poets would poetize law.
Going back at least to Chaucer, we can observe law in poetry:
So great a purchasour was nowher noon.
Al was fee simple to him in effect;
His purchasing mighte nat been infect
Nowher so bisy a man as he ther nas;
63. Briarcliff Quarterly, Rubbings of Reality, in WALLACE STEVENS:
COLLECTED POETRY AND PROSE 815 (1997).
64. WHITMAN, Preface to Leaves of Grass, in WHITMAN, supra note 6, at
746 (“The greatest poet . . . is a seer . . . only he sees it and they do not. He is
not one of the chorus. . . .What the eyesight does to the rest he does to the
rest.”).
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And yet he semed bisier than he was.
In termes hadde he caas and domes alle,
That from the tyme of King William were falle.
Thereto he coude endyte, and make a thing;
Ther coude no wight pinche at his wryting,
And every statut coude he pleyn by rote.65
[So great a purchaser was never known.
All was fee simple to him, in effect,
Wherefore his claims could never be suspect.
Nowhere a man so busy of his class,
And yet he seemed much busier than he was.
All cases and judgments could he cite
That from King William’s time were apposite.
And he could draw a contract so explicit
Not any man could fault there from elicit;
And every statute he’d verbatim quote.]
Law was a frequent theme of Shakespeare, including his
famous cry in Henry VI: “The first thing we do, let’s kill all the
lawyers.”66 This phrase is frequently used to denigrate lawyers.
However, in the context of the play, the more plausible meaning of
the phrase is that because lawyers were especially powerful, and
therefore to be feared, they were to be done away with in the first
wave of extermination of the old regime.
Consider his observation in Measure for Measure:
We must not make a scarecrow of the law,
Setting it up to fear the birds of prey,
And let it keep one shape till custom make it,
Their perch, and not their terror.67
And perhaps no one ever captured the essence of defamation
law as well as Shakespeare:
Good name in man and woman, dear my lord,
Is the immediate jewel of their souls.
65. Geoffrey Chaucer, THE CANTERBURY TALES: NINE TALES AND THE
GENERAL PROLOGUE 11 (V.A. Kolve ed., Norton & Co. 1989).
66. William Shakespeare, The Second Part of Henry the Sixth act 4,
sc.2, 76-77, in THE RIVERSIDE SHAKESPEARE 693 (Houghton Mifflin Co., 2d ed.
1997) [hereinafter “RIVERSIDE SHAKESPEARE”].
67. William Shakespeare, Measure for Measure, act 1, sc. 4, 1-4, in
RIVERSIDE SHAKESPEARE, supra note 66, at 590.
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Who steals my purse steals trash; ‘tis something,
nothing;
‘Twas mine, ‘tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed.68
Poetry offers us many portraits of the legal profession. Often,
poets depict lawyers in unflattering terms. Carl Sandburg was
not shy to demean lawyers in his poetry of the common man,
geared to the simplicity of the American ideal of virtuous, selfreliant independence, the force of American democracy.
Consider Sandburg’s musings in The Lawyers Know Too
Much:
The lawyers, Bob, know too much.
They are chums of the books of old John Marshall.
They know it all, what a dead hand wrote,
A stiff dead hand and its knuckles crumbling,
The bones of the fingers a thin white ash.
The lawyers know
a dead man’s thought too well.
...
When the lawyers are through
What is there left, Bob?
Can a mouse nibble at it
And find enough to fasten a tooth in?
Why is there always a secret singing
When a lawyer cashes in?
Why does a hearse horse snicker
Hauling a lawyer away?69
Lawyers can be held in high esteem too. Consider again
Chaucer’s portrait of a lawyer in The Canterbury Tales: “So great
a purchaser was never known. . . . And he could draw a contract so
explicit/Not any man could fault there from elicit.”70
68. WILLIAM SHAKESPEARE, OTHELLO, act 3, sc. 3, 155-61, in RIVERSIDE
SHAKESPEARE, supra note 66, at 1221.
69. Carl Sandburg, The Lawyers Know Too Much, in THE COMPLETE
POEMS OF CARL SANDBURG 189 (1970).
70. See supra text accompanying note 59.
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B. Lawyer-Poets
Some lawyer-poets sought solace in poetry as an escape from
the drudgery of law, a drudgery well-documented in current
American periodicals.71 Let us survey the poetry of some of
them—Bryant, Masters and Joseph—as we try to obtain more
insight into the influence of law on poetry.
1. William Cullen Bryant
William Cullen Bryant sought escape from law in the purer
world of nature, a world for which he longed.
O’er Coke’s black letter page,
Trimming the lamp at eve, ‘t is mine to pore;
Well pleased to see the venerable sage
Unlock his treasur’d wealth of legal lore;
And I that loved to trace the woods before,
And climb the hill a play mate of the breeze,
Have vow’d to tune the rural lay no more,
Have bid my useless classics sleep at ease,
And left the race of bards to scribble, starve and freeze.72
Escape to nature in the mind image he envisioned and of
which he wrote served as a respite from the time-clock of law. He
traced how nature could induce a natural order and make
civilization.
The weak, against the sons of spoil and wrong,
Banded, and watched their hamlets, and grew strong;
States rose, and, in the shadow of their might,
The timid rested. To the reverent throng,
Grave and time-wrinkled men, with locks all white,
Gave laws, and judged their strifes, and taught the way of
right.73
71. See, e.g., Kate Gibbs, Far From the Glamorous Profession in ‘LA
Law’, LAWYERS WEEKLY (Dec. 16, 2005); Kate Gibbs, Search for a Billing
Alternative, LAWYERS WEEKLY (Nov. 18, 2005); Jill Schacher Chanen, The
Breaking Point: A Hiatus Can Help Lawyers Step Back and Reflect on What
Is Important, 87 A.B.A. J. 82 (June, 2001).
72. Letter from William Cullen Bryant to Jacob Porter (April 26, 1813),
in 1 LETTERS OF WILLIAM CULLEN BRYANT 28 (William Cullen Bryant &
Thomas G. Voss eds., 1975), quoted in Steven M. Richman, William Cullen
Bryant and the Poetry of Natural Law, 30 AKRON L. REV. 661, 665 (1997).
73. WILLIAM CULLEN BRYANT, The Ages, in THE POETICAL WORKS OF
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Dominance by the strong is part of the natural order. The
weak must band together to form the strong.74 Law can then be
used to secure the right. Bryant thus speaks of the social
contract, the prevailing political theory of the Enlightenment Age
in which he lived. It is clear that Bryant sees hope in the natural
order, and that the United States represents a new experiment,
one animated by the good of nature compared to the older, corrupt
ideals of Europe.75 He captures this sense of democracy in Rats
and Mice:
Once on a time, as saith our story,
Within a single edifice
A nation flourished in its glory,
Whose citizens were rats and mice.
The politics they prospered under
Passed far and widely for a wonder,
So based were they on reason’s laws,
And equal rights of vermin;—
So planned, the general good to cause
And cleanly keep Justitia’s ermine.76
The natural order of community is based on “reason, equality,
[and] justice,” an ideal state formed by natural law, of which the
United States was the archetype.77 Bryant sees an elemental
harmony in nature:
The elemental harmony brings forth
And rears all life, and, when life’s term is o’er,
It sweeps the breathing myriads from the earth,
And whelms and hides them to be seen no more:
While the Great Founder, he who gave these laws,
Holds the firm reins and sits amid his skies
Monarch and Master, Origin and Cause,
And Arbiter supremely just and wise.78
Law, in a sense, is divinely ordered in Bryant’s vision. Law
provides justice and order to daily life, which might, of course, be
WILLIAM CULLEN BRYANT 21 (Roslyn 2d ed. 1915) [hereinafter “POETICAL
WORKS”], quoted in Richman, supra note 72, at 665.
74. Richman, supra note 72, at 665.
75. Id. at 666.
76. Id. at 668.
77. Id.
78. POETICAL WORKS, supra note 73, at 330, quoted in Richman, supra
note 73, at 683.
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the very purpose of law.
In The African Chief, Bryant bemoans America’s ignoble
bargain with slavery:
Chained in the market-place he stood,
A man of giant frame,
Amid the gathering multitude
That shrunk to hear his name.
...
Vainly, but well that chief had fought,
He was a captive now,
Yet pride, that fortune humbles not,
Was written on his brow.
...
Not for thy ivory nor thy gold
Will I unbind thy chain;
That bloody hand shall never hold
The battle spear again.
A price that nation never gave
Shall yet be paid for thee;
For thou shalt be the Christian’s slave,
In lands beyond the sea.79
To Bryant, slavery is savage and unnatural; it is a violation of
nature’s laws. Bryant captures the immorality of slavery, and
presages the great American struggle over it that would come.
In Bryant, we find a chronicler of early America, America
with all of its promise as the New World. The ideal of America is
a world animated by the positive forces of nature, following
nature’s model to form a new polity.
2. Edgar Lee Masters
Edgar Lee Masters, likewise, escaped to poetry, although the
world of law he invoked was one of power and manipulation, law
being the thread pulling lives together. Masters portrayed the
legal world in all of its grittiness and politics. He invoked his own
experiences as a courtroom lawyer, first in a small town, then
later in Chicago.80 Employing the device of soliloquy, he sought to
79. POETICAL WORKS, supra note 73, at 102, quoted in Richman, supra
note 65, at 670.
80. Steven Richman, Edgar Lee Masters and the Poetics of Legal
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convey an honesty about life in a small town—fictional Spoon
River—through the voices of its deceased residents. Death
provides the true hindsight; freed of the conventions of life, a
person can speak frankly. In Spoon River there is little justice;
power and influence largely determine fate, an unseen but
directing thread maneuvered by law.
Consider his portrayal of a trial lawyer in John M. Church:
I was attorney for the “Q”
And the Indemnity Company which insured
The owners of the mine.
I pulled the wires with judge and jury,
And the upper courts, to beat the claims
Of the crippled, the widow and orphan,
And made a fortune thereat.
The bar associations sang my praises
In a high-flown resolution.
And the floral tributes were many—
But the rats devoured my heart
And a snake made a nest in my skull!81
Or consider Master’s dark view of law in Hod Putt:
Here I lie close to the grave
Of Old Bill Piersol,
Who grew rich trading with the Indians, and who
Afterwards took the bankrupt law
And emerged from it richer than ever.
Myself grown tired of toil and poverty
And beholding how Old Bill and others grew in wealth,
Robbed a traveler one night near Proctor’s Grove,
Killing him unwittingly, while doing so,
For the which I was tried and hanged.
That was my way of going into bankruptcy.
Now we who took the bankrupt law in our respective ways
Sleep peacefully side by side.82
In Spoon River, Masters depicts the adversary system as
distorting and twisting truth. Lawyers’ gamesmanship, power
Realism, 31 CAL. W. L. REV. 103, 104 (1994).
81. Edgar Lee Masters, John M. Church, in SPOON RIVER ANTHOLOGY
83, 83 (1992).
82. Edgar Lee Masters, Hod Putt, in SPOON RIVER ANTHOLOGY, supra
note 81, at 3.
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and influence determine all.
Take note, passer-bys, of the sharp erosions
Eaten in my head-stone, by the wind and rain—
Almost as if an intangible Nemesis or hatred
Were marking scores against me,
But to destroy, and not preserve, my memory.
I in life was the Circuit Judge, a maker of notches,
Deciding cases on the points the lawyers scored,
Not on the right of the matter.
O wind and rain, leave my head-stone alone!
For worse than the anger of the wronged,
The curses of the poor,
Was to lie speechless, yet with vision clear,
Seeing that even Hod Putt, the murderer,
Hanged by my sentence,
Was innocent compared with me.83
From Jack McGuire we learn:
They would have hanged me except for this:
My lawyer, Kinsey Keene, was helping to land
Old Thomas Rhodes for wrecking the bank,
And the judge was a friend of Rhodes
And wanted him to escape,
And Kinsey offered to quit on Rhodes
For fourteen years for me.
And the bargain was made. I served my time
And learned to read and write.84
Master’s vision is a dark one. Law is a manipulative force,
bent and twisted by men of power and influence to suit their ends.
Some lawyer-poets, like Wallace Stevens, almost never invoke
law, at least not directly. He seemed to keep separate his day job
as surety lawyer for the Hartford Accident and Indemnity
Insurance Company from his true vocation as poet. As a poet, he
sought a world of mind-creation, employing metaphor freely to
transfigure and escape the banality of daily existence. Unlike
Masters, he appeared to like the distraction law offered from the
83. EDGAR LEE MASTERS, The Circuit Judge, in SPOON RIVER
ANTHOLOGY, supra note 81, at 74.
84. Edgar Lee Masters, Jack McGuire, in SPOON RIVER ANTHOLOGY,
supra note 81, at 43.
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hard work of poetry.85
Contemporary lawyer-poets invoke and reflect the world of
law in their poetry as well. Consider Lawrence Joseph, a law
professor at St. John’s University, former practicing lawyer and
active poet, speaking to the condition of that strange beast we call
a lawyer.
Now, what type of animal asks after facts?
— so I’m a lawyer . . . . Things like “you too
may be silenced the way powerful
corporations silence, contractually”
attract my attention. The issue’s
bifurcated. “Why divide the dead?”
The Foreign Minister asks, “what’s one life
when you’ve lost twenty million?”86
Or consider his poem, Variations on Variations on a Theme:
And that’s the law. To bring to light
most hidden depths. The juror screaming
defendant’s the devil staring at her
making her insane. The intense strain
phrasing the truth, the whole truth, nothing
but sentences, endless sentences.87
The stuff of law is words—words and words, sentences and
sentences—communicating through language the meanings of
events and facts, issues and questions, rules and counter rules or
standards of conduct directed by law. Law is one big struggle over
what the meaning of an event or a case or a force is. There is a
strain to get it right, or to get it the way you want, as the different
actors push and pull to convey their points, in a sense like artists
trying to form the canvas according to their desires. We might call
this the struggle of law, which Joseph captures well.
85. David A. Skeel, Jr., Notes Toward an Aesthetics of Legal
Pragmatism, 78 CORNELL L. REV. 84, 94-95 (1992). There is a vast legal
literature on Wallace Stevens. A sampling of it includes THOMAS C. GREY,
THE WALLACE STEVENS CASE: LAW AND THE PRACTICE OF POETRY (1991) and
Thomas C. Grey, Hear the Other Side: Wallace Stevens and Pragmatist Legal
Theory, 63 S. CAL. L. REV. 1569 (1990).
86. LAWRENCE JOSEPH, Admissions Against Interest, in BEFORE OUR
EYES 12 (1993), quoted in David A. Skeel, Jr., Practicing Poetry, Teaching
Law, 92 MICH. L. REV. 1754, 1764-65 (1994).
87. LAWRENCE JOSEPH, Variations on Variations on a Theme, in BEFORE
OUR EYES, supra note 86, at 43, quoted in Skeel, supra note 85, at 1766.
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We could go on offering more examples, but the point is clear:
law is a common topic of poetry, a topic like other major forces in
society that influences and infuses the muses. It is natural that
this is the case, given the prominence of law in western society.
The reciprocal question is now the one that interests us: how does
poetry influence law?
V. THE INFLUENCE OF POETRY ON LAW
There are obvious and direct ways in which poetry influences
law, which is perhaps surprising. The direct influence of poetry
on law can be seen in the appearance of poetry in reported
decisions and even the rendering of judicial decisions in verse.
There are also important influences of poetry on law that are less
easy to discern. This more indirect influence we refer to as an
invisible power in the sense that the influence is less obvious,
although the power still exerts influence. In this Part V, we
chronicle the direct and indirect influence of poetry on law.
A. Direct Influence
Poetry appears directly in the law, and thus we can speak of a
way in which poetry influences law. The main way in which
poetry influences law in this respect is as a mode of expression,
conveying the meaning or emotion of an issue or reinforcing
through other word forms thoughts or ideas expressed in more
traditional, scientific or legal language. This influence of poetry
on law is better illustrated by example than by description.
Consider, for example, Justice Blackmun’s invocation of
poetry as the means to depict the ubiquity and importance of
baseball to American culture in the Supreme Court’s decision,
Flood v. Kuhn, which upheld the practice of treating baseball
players as employees of the major league baseball teams for which
they played, and not as the free agents they desired to (and later
would) become:
And one recalls the appropriate reference to the “World
Serious,” attributed to Ring Lardner, Sr.; Ernest L.
Thayer’s “Casey at the Bat”; the ring of “Tinker to Evers
to Chance”; and all the other happenings, habits, and
superstitions about and around baseball that made it the
“national pastime” or, depending upon the point of view,
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“the great American tragedy.”88
Blackmun’s invocation of poetry is a readily identifiable
cultural reference to Americans, speaking to the common appeal of
baseball across generations. Blackmun’s use of poetry is a way of
conveying his understanding of the importance the case would
hold for the American sport.
Or consider Texas v. Johnson, in which the Supreme Court, in
a hotly contested five-four decision, determined that it was a
violation of the cardinal free speech principle of content
discrimination for government to prohibit only desecration of the
American flag “‘in a way that the actor knows will seriously offend
one or more persons likely to observe or discover his action.’”89
The majority of the Court, in a decision by Justice Brennan,
carefully explained its decision in the language of First
Amendment methodology, a judgment of science we might say.
Chief Justice Rehnquist, responding in dissent, first offered a long
set of cultural references reflected in poetry to capture and
express the special meaning the flag held for the nation. He
quoted extensively from, among other works, Ralph Waldo
Emerson’s Concord Hymn, the American national anthem, The
Star Spangled Banner, and John Greenleaf Whittier’s poem,
Barbara Frietche, to convey the symbolic significance of the unity
the flag holds for the nation.90 Only later did Rehnquist couch his
response in First Amendment methodology. In a sense, resort to
poetry allowed Rehnquist to convey meaning in a way that legal
language could not. The raw starkness of poetry spoke more
clearly than stare decisis.
Another example worth mentioning is Judge Reinhardt’s use
of the famous song, Strange Fruit, to portray the act of hanging in
a case that considered whether hanging was cruel and unusual
punishment under the Eighth Amendment to the Constitution:
Southern trees
Bear a strange fruit
Blood on the leaves
And blood at the root
88. 407 U.S. 258, 263-64 (1972).
89. 491 U.S. 397, 400 n.1 (1989) (quoting Texas Penal Code Ann. §
42.09(b) (1989)).
90. See id. at 422-27.
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Black bodies swingin’
In the Southern breeze
Strange fruit hanging
From the poplar trees.
...
Here is a fruit
...
For the tree to drop
Here is a strange
And bitter crop.91
Some judges go further, resorting to poetry to render
decisions. Mary Kate Kearney assesses the sense and propriety of
this act, concluding that there is a place for poetry in judicial
opinions as “an appropriate form of judicial expression.”92 She
draws upon the poetic oeuvre of Judge Michael Eakin, a member
of the Superior and then Supreme Court of Pennsylvania.
Let us sample his handiwork. For a premarital contract gone
awry, Eakin penned:
Conrad Busch filed a timely appeal,
Trying to avoid a pre-marital deal
Which says appellee need not pay him support,
He brings his case, properly, before this Court.
...
They wanted to marry, their lives to enhance,
Not for the dollars—it was for romance.
When they said “I do,” had their wedding day kiss,
It was not about money—only marital bliss.
...
But a deal’s a deal, if fairly undertaken,
And we find disclosure was fair and unshaken.
Appellant may shun that made once upon a time,
But his appeal must fail, lacking reason (if not rhyme).93
Consider a contract case involving the sale of emus:
The emu’s a bird quite large and stately,
91. Campbell v. Wood, 18 F.3d 662, 701 (9th Cir. 1994) (Reinhardt, J.,
dissenting) (quoting Lewis Allan, Strange Fruit (1939)).
92. Mary Kate Kearney, The Propriety of Poetry in Judicial Opinions,
12 WIDENER L. J. 597, 599 (2003).
93. Busch v. Busch, 732 A.2d 1274, 1275, 1278 (Pa. Super. Ct. 1999),
quoted in Kearney, supra note 92, at 597.
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Whose market potential was valued so greatly
That a decade ago, it was thought to be
The boom crop of the 21st century.
Our appellant decided she ought to invest
In two breeding emus, but their conjugal nest
Produced no chicks, so she tried to regain
Her purchase money, but alas in vain.
Appellant then filed a contract suit,
But the verdict gave her claim the boot;
Thus she was left with no resort
But this appeal to the Superior Court.94
The rendering of judicial opinions by verse demonstrates a
clear and direct influence of poetry on law, meting out justice by
meter, so to say. Likewise, the use of poetry in judicial opinions
illustrates how judges, too, utilize the full range of human emotion
and understanding to communicate the points of the law. Perhaps
poetry affords judges the opportunity to address the public in a
more readily understandable medium. Perhaps, like Bryant and
Masters, it affords them a creative outlet for expression different
than the normal conventions of judicial opinions. So we can
observe a visible impact of poetry on law. Now, let us turn to a
more illusive quest: tracing the less visible influence of poetry on
the law, what we call an invisible power.
B. Indirect Influence
“By indirections find directions out . . . .”95
Less overt yet powerful, indirect influences operate in crucial
ways on law, sometimes forming the formant or underlying crypto
type that actually drives law.96 For example, geography can drive
the law. To use an example we have previously discussed,
consider how geography changed water law in Texas. Inheriting
the water law of England, a country with an abundance of water,
Texas altered the law to fit its climate of arid, dry land. The
English law of riparian rights was changed to the Texas law of
94. Liddle v. Scholze, 768 A.2d 1183, 1184 (Pa. Super. Ct. 2001), quoted
in Kearney, supra note 92, at 603-04.
95. William Shakespeare, Hamlet act 2, sc. 1, 63, in RIVERSIDE
SHAKESPEARE, supra note 66, at 1200.
96. Rodolfo Sacco, Legal Formants: A Dynamic Approach to
Comparative Law (2nd installment), 39 AM. J. COMP. L., 343, 385 (1991).
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appropriation: “first in time, first in right.”97
Uncovering and decoding these invisible powers opens up a
whole
new
array
of
understandings
concerning
the
interrelationship of law to culture and, as we understand this
process, law itself—its content, impetus, breadth and limitation.
This is what we now set out to do: uncover some of the invisible
powers of poetry on law. This will call on us to look at law in new
ways, with new senses and a new awareness of the process and
forces at work in forming and influencing law. But, in turn, this
inquiry will open up new dimensions of law and its relationship to
culture. We concentrate on these invisible powers of poetry on
law: culture, language and structure.
1. Culture
Law does not exist in a void but interacts with and helps
infuse culture. Poetry is one of the seminal forces of culture, as
poets reflect on the human condition in a given time-space
relationship and, through their voice, help constitute the culture
through their expression and vision. In this respect, we might
refer to poets as beacons of the culture. Shelley had a way of
describing this vision: “A poem is the very image of life expressed
in its eternal truth.”98 Or as Robert Frost expressed, “poetry rules
the world.”99 Walt Whitman observed, simply, that “[t]he greatest
poet . . . knows the soul.”100 Poets offer us the raw, unfiltered
sense of the culture. Poets thereby help reflect the culture—the
underlying setting of law, its history, tradition, milieu, impulses
and so on.101
97. Bernhard Grossfeld & Edward J. Eberle, Patterns of Order in
Comparative Law: Discovering and Decoding Invisible Powers, 38 TEX. INT’L
L.J. 291, 299 (2003). For further consideration of this theme, see BERNHARD
GROSSFELD, CORE QUESTIONS OF COMPARATIVE LAW (Vivian Grosswald Curran
trans., 2004).
98. Percy Shelley, A Defense of Poetry, in SHELLEY’S POETRY AND PROSE
(1821) 485 (Donald H. Reiman & Sharon B. Powers eds., Norton & Co. 1977).
99. Robert Frost, On Extravagance: A Talk, in COLLECTED POEMS,
PROSE & PLAYS 902, 903 (1995).
100. WHITMAN, supra note 6, at 749.
101. Whitman, again, captures this thought well: “the greatest poet
brings the spirit of any or all events and passions and scenes and persons
some more and some less to bear on your individual character as you hear or
read. To do this well is to compete with the laws that pursue and follow
time.” Id. at 748.
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Law and poetry are both forces of culture and it is, therefore,
not surprising that the forces that drive and influence poetry
affect and drive law as well. Thus, in studying this aspect of
poetry, we are really studying culture, the common ground from
which poetry and law spring and reflect. It thus pays to trace
some of the parallel influences of culture on law and poetry,
showing how shared phenomena can have a common influence on
each.
Studying culture means studying the forces and influences
that shape culture. Let us start with the Enlightenment. In this
period, the animating belief was directing man’s reason to
understand the natural world. The world was envisioned to be a
naturally ordered design, and the objective of man was to search
out and discover its principles.
Enlightenment-inspired reason influenced poetry and its
natural outlet, drama, as well. The foremost literary figure of the
German Enlightenment was Gotthold Ephraim Lessing, who
wrote his famous play, Nathan the Wise (1779), during this time.
In the play, Lessing gathers in Jerusalem the main religions of the
time—Christianity, Judaism and Islam—and tests them with
reason to see which best suits man. The test applied to religion is
how it applies to human life; Lessing subjects religious tenets to
reason, separating solid belief from superstition.102 His work is a
plea for religious tolerance. Interestingly, of course, Lessing’s
work on religion parallels the important thought occurring
contemporaneously on religious freedom, most notably in the
young America by Thomas Jefferson and James Madison, who
reconceived the idea of religious freedom in constitutional
democracy. In this example, culture infuses both law and poetry.
Observe further parallel forces in law. In Europe, this was
the beginning of the age of codification of the private law. The
animating idea was that law could be ordered along naturally
derived principles and made comprehensible. The most ambitious
of the codification effort was the Prussian General Territorial Law
of 1794, sponsored by Frederick the Great, which attempted to set
down in one code all the principles that could regulate the
contingencies of life. This effort was, of course, beyond the grasp.
But for us what is important is the effort: Frederick’s striving to
102. Ernst Rose, A HISTORY OF GERMAN LITERATURE 146, 148-49 (1960).
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capture all of life and its contingencies in a written legal code.
Belief in reason propelled this hubris. The famous Code Civil
Francais of 1804 was a more famous and successful version of
ordering a society through reason. For our purposes, what is
notable is the common influence of specific cultural forces—here
Enlightenment reason—on poetry and law.
We might also point to the early work of Friedrich Schiller,
forerunner, with Goethe, both of the influential Sturm und Drang
[Storm and Stress] cultural movement. Schiller’s first play, The
Robbers, depicts a noble outlaw who rebels against the values of
his father and what he views as the staid and stultifying
conventions of, in essence, the ancien regime: tradition, reason,
authority, law and order. Fatefully, perhaps, the play appeared in
1781, the same year in which Lessing died, in a literary passing of
the guard.
Immanuel Kant’s foundational book on reason,
Critique of Pure Reason, also appeared in 1781, refuting
rationalist philosophy.103 The rebellion of Sturm und Drang was
directed against princely absolutism, authority and the stifling
conventions of rationalism. The movement sought, instead, the
spontaneous life forces of the human spirit, such as passion and
emotion. The rallying cry was for liberty and a return to the
purity of nature and the ways of the common man.104 We might
think of Sturm und Drang as the cultural revolution of the 1780s
and 1790s, a cultural siren of the modern age dawning in Europe.
By studying Sturm und Drang, we can obtain further
perspective on the mutual influences culture has on law and
poetry. The individualism and cry for freedom at the root of
Sturm und Drang paralleled the great political theories of the age
captured so well by the American Revolution (especially the 1776
Declaration of Independence and 1787 Constitution) and the
French Revolution of 1789. Each of the literary and political
movements drew inspiration and energy from the same impulses
of personal freedom and nature. The American and French
revolutions were political and social; the German revolution was
inwardly spiritual in orientation, affecting letters and the arts.105
The poetry of William Cullen Bryant, written later in the
103. Id. at 146, 165.
104. Id. at 162.
105. Id. at 156.
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early nineteenth century, a formative period of law and letters in
the United States, works on similar themes, shifting somewhat to
nature and natural reason, as we have discussed.106 This was the
period just after the adoption and implementation of the American
Constitution, a period of hope. Bryant’s poetry mirrors the
essential sense of the American experiment in constitutional
democracy. In his poetry, Bryant sought an order and sense of
place in nature—a return to the basics—in a way similar to the
Framers’ design of a new world of law based on natural reason
and naturally derived principles of government. Natural law and
natural poetry reveal the common theme of nature as an
influence, seeking normative order in nature. The New World of
America offered these more open possibilities to reconstitute a
new order.
We might reconsider the poetry of Edger Lee Masters in this
light as well. Masters wrote darkly of law in the early twentieth
century. He portrayed law as a somewhat sinister force, a
controlling power manipulated by the wealthy and well-connected
to perpetuate the power structure of the small town he portrayed
in Spoon River.107 Masters’s work took place at the time of the
emergence of legal realism as a force in legal academics and, later,
law. Thus, we might identify legal realism as a common cultural
influence on the poetry of Masters and American society of that
time. Viewing Masters as a legal realist provides a different
perspective on his work, and his work yields keen insight into the
society of that time.
Here, too, we could reconsider the work of Lawrence Joseph.
Joseph writes today in the era of post-modernism in literature and
law. Not surprisingly, Joseph’s poetry is modernist, playing with
authorial authority, the merging of object and subject and the
testing of language as a shaping force. His portrayal of law
reflects the influence of Critical Legal Studies (CLS). The real
force of society—economic power, beliefs, and ambitions—shape
law more than a statute. Or, as simply stated in the CLS credo:
“LAW IS POLITICS.”108
106. See Richman, supra note 73, at 665.
107. See generally supra note 82.
108. John Henry Schlegel, Notes Toward an Intimate, Opinionated, and
Affectionate History of the Conference on Critical Legal Studies, 36 STAN. L.
REV. 391, 411 (1984).
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2. Language Architecture
A further symmetry between law and poetry reveals deep
connections between the two, connections that must be carefully
studied so that their influence and power can be appreciated. This
influence of poetry on law is the modernist experiment in
language alluded to in our discussion of Lawrence Joseph.
Modernist poetry probes the relationship between author and
topic—subjective and objective, the use and conception of
language—its contingent nature and opaqueness, its strength and
limitation, and the ability through imagination and language to
create and reconstitute reality. This modernist poetry experiment
presaged the development of the post-modernist developments of
legal theory, starting with Critical Legal Studies in the 1980s and
now transforming to a range of Critical movements, such as those
over race, gender, sexual orientation and the like.
The experiments in poetry began in the early twentieth
century in the work of poets like T. S. Eliot, William Carlos
Williams, Ezra Pound, and Marianne Moore. Their work made
clear that language was a handiwork, a lens that reflected
particular perspectives—of the author, of the idea, or of the object.
Language was not necessarily a transparent, clear communication
of objective truths, senses or the like.109 Stated differently,
modernist poetry showed that poetry was the realization of the
reality created by the mind of the poet. The reality we understand
or see, in other words, is the reality created and present in our
minds. We might speak of a “mind reality.” Language was,
ultimately, a shaping mechanism, shaping the ideas or forms we
perceive with our senses.
The questions posed by modernist poetry had deep
implications for law. Was law any different? Initially, we might
say, the answer was yes. Law was different than modernist
poetry because law was based on certain core principles, such as
justice, liberty or order, and, therefore, these core principles
anchored law to objective, universal or stable principles. Law
could not be contingent or subjective, as poetry. After all, law was
a governing system in society, with direct and coercive effects on
109. Lawrence Joseph, Theories of Poetry, Theories of Law, 46 VAND. L.
REV. 1227, 1230, 1233-34 (1993).
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people.
Yet, the more one contemplates the lessons of modernism, the
more one realizes they had a point. Law was not necessarily
objective or immutable. Law might, in fact, be based on certain
core organizing assumptions around which the architecture of a
legal system could be built. But if that is so, then the assumptions
around which law are built are perhaps nothing other than the
assumptions around which poems are built. Both law and poetry,
in other words, are experiments in language (or so they could be).
The type of language employed is predicated on the underlying
assumptions made. Stated a different way, the reality portrayed
through language, in either law or poetry, is the reality shaped by
the creator and his interpreters.
Viewed this way, we can now see that law itself can be viewed
as less objective and more contingent. Law depends on the
assumptions made by the creator—legislators, judges or other
lawgivers. Thus, study of the law’s assumptions might uncover
law’s source, the underlying historical, philosophical, cultural or
economic forces that help determine the path of the law. Law, in
other words, is contingent on the assumptions made. And if
assumptions can be made, assumptions can also be altered. In
this respect, then, law is like modernist poetry—a lens reflecting
the perspective of the creator, of the idea or the like.
For example, consider the United States Constitution. When
a person first reads the Constitution, the person is naturally
inclined to read it as authoritative, objective and maybe even
universal in its appeal to foundational concepts such as separation
of powers, democracy and human rights. Yet, the more one reads
and studies the Constitution, and heeds the lessons of language,
the more one recognizes that the Constitution, like any work, is
rooted in certain base assumptions, and that these assumptions
animate the work and, to the extent the work is rendered into law
as a coercive power, the legal system itself.
In the case of the Constitution, architectural principles are
rooted in particular time-place world views that vest the document
with special meaning. For example, the framing period reflected
the influence of the Enlightenment and natural law, especially as
those influences were discussed and developed in England and
France. Thus, the conception of liberty might have a less
universal and a more particular, or contingent, sense, dependent
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on the views and aspirations of white aristocratic men in 1780s
America.
Or consider how the meaning of words can change. The
concept of equality was introduced to the Constitution in 1868
with the adoption of the Fourteenth Amendment following the
Civil War. The equality of 1868 contained the space-time views of
the abolitionist Reconstruction Congress that had drafted it. By
1896, however, the meaning of equality had changed, as the
Supreme Court, in Plessy v. Ferguson, vested the clause with the
meaning of “separate but equal.”110 In 1954, the Supreme Court,
in Brown v. Board of Education, altered the meaning of equality
again, declaring that “in the field of public education the doctrine
of ‘separate but equal’ has no place.”111 The point here is that all
language, including the language of law, can be indeterminate and
contingent, dependent upon a particular exchange of meaning
between author and reader. The ascription of meaning to words
depends upon the given interpretive community of a given timespace relationship. That is the meaning of the Court’s declaration
in Planned Parenthood of Southeastern Pennsylvania v. Casey:
Our Constitution is a covenant running from the first
generation of Americans to us and then to future
generations. It is a coherent succession. Each generation
must learn anew that the Constitution’s written terms
embody ideas and aspirations that must survive more
ages than one. We accept our responsibility not to retreat
from interpreting the full meaning of the covenant in
light of all our precedents. We invoke it once again to
define the freedom guaranteed by the Constitution’s own
promise, the promise of liberty.112
The dependence of language on interpretative communities, a
lesson of poetry and literature, has deep meaning for law as well.
The meaning-making of law is, like poetry, dependent on the
exchange of meaning between the author (in law’s case, the lawmaker) and the interpretive community. Generally, the exchange
of the meaning of law is carried out by the powerful or persuasive
members of the society. The meaning they ascribe to law will tend
110. See generally 163 U.S. 537 (1896).
111. Brown v. Board of Education, 347 U.S. 483, 495 (1954).
112. 505 U.S. 833, 901 (1992).
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to reflect their views. If this is so, the law of the jurisdiction will
tend to lock in the values, views and aspirations of the dominant
elements of society.
Alternative conceptions of law depend on different exchanges
of meaning, a different complexion of authors and readers. This
lesson of poetry and literature has, in the course of our time,
transformed our conception of law. With the advent, first, of legal
realism, we came to realize that the law is power—what the
lawmaker says it is—and not the revealed wisdom of some
objective ordering of principles. From this, the legal realists
framed their theory of law not as objective but as social policy.
Law could then be directed along desired ways, such as social
utility, economic justice or economic efficiency.
The true lesson of modernism, however, was with the advent
of the CLS movement, which focused on law as contingent,
reflecting underlying assumptions about people, social structure
and power. Language was the governing mechanism of society,
put in place by the governing structure of society. Law was the
narrative of the powerful over the powerless, or so it could be.
Heeding the lessons of modernist poetry and postmodern
literary theory, if law and society were to change, a new narrative
was necessary. This became the aim of CLS: to construct a new
narrative of law. These challenges to conventional legal thought
transformed into a whole field of what we might call outsider
jurisprudence—the perspectives of those outside the mainstream
and the power structure. The movement included critical race,
critical gender, queer studies, storytelling and so forth. Each of
these is trying to shape a new reality by employing a new
narrative.
For our purposes, what is significant is that we can identify
an important influence of poetry—here modernist poetry—on law.
The main impact of this influence is on scholarship more than
rules of law, although the vision of legal modernism can also be
discerned in the law itself.113 In this respect, we have uncovered
113. An example would be the anti-pornography ordinance drafted by
feminist pioneers Catherine MacKinnon and Andrea Dworkin that targeted
discrimination against women. The Minneapolis city council adopted the
ordinance, but the mayor vetoed it. The city of Indianapolis adopted the
ordinance, but it was struck down by the federal courts. See generally Am.
Booksellers Ass’n, Inc. v. Hudnut, 771 F.2d 323 (7th Cir. 1985), aff’d mem.,
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and decoded an invisible power of poetry on law.
The intense focus on language, structure and authorial
authority propels us to recognition of further insights and
understandings of law. Two important insights uncovered by the
study of poetry are, first, the time-space contingency of legal
language and, second, the appreciation of the structure and
assumptions—implicit and explicit—of legal language. These
learnings flow from our recognition of language as a shaping
mechanism of the reality created, which we understand in that
form. Let us discuss these in turn.
3. Time-Space Contingency of Language
The teaching of modernist poetry instructs that language
itself is contingent and indeterminate. Language is what the
author constructs it to be. The meaning of language is the
exchange of meaning created by the author as communicated and
understood by the reader. But this exchange of meaning occurs in
a specific time-space relationship (which we define as a milieu),
which will reflect the specific influences, phenomena, and ideas
that comprise the milieu. In this respect, we would refer to the
specific historical, social, economic, philosophical, technological
and other forces constitutive of the culture. The contingency of
language as it operates within a specific milieu turns attention to
the base forces that comprise the milieu. Legal language is no
different. To understand legal language, we need to identify and
decode the base forces that comprise the milieu within which legal
language operates.
Applying these lessons of language to law, we see law in a
different light. For example, let us consider the legal world of the
nineteenth century in the United States. If we look to the
nineteenth century with twenty-first century eyes, we see the
nineteenth century in a way different than the prevailing wisdom
of the nineteenth century. In the United States, the nineteenth
century was the age of the classical model of law. Law was
assumed to rest on objectively rooted principles that were neutral
475 U.S. 1001 (1986). The history is recounted in KATHLEEN M. SULLIVAN &
GERALD GUNTHER, CONSTITUTIONAL LAW 1085-87 (13th ed. 2001). Their idea
was more successful in Canada. See R. v. Butler [1992] 1 S.C.R. 452 (explicit
sex that degrades or dehumanizes can be banned).
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and incontestable. Law was a science. The role of a judge was to
derive logical conclusions from the objectively ordered system of
the law. The act of judging was the act of divining principles—the
oracle of wisdom—not of employing “situation sense.”114
The legal language of the time strove for clarity, transparency
and consistency. Language was assumed to be a clear means of
communicating the truths of law, like a glass window revealing an
interior. Poetry was no different. The poet’s language was his or
her self-confident revelation of meaning and truths. Consider
John Keat’s famous poem Ode to a Grecian Urn.
O Attic shape! fair attitude! with brede
Of marble men and maidens overwrought,
With forest branches and the trodden weed;
Thou, silent form! dost tease us out of thought
As doth eternity: Cold Pastoral!
When old age shall this generation waste,
Thou shalt remain, in midst of other woe
Than ours, a friend to man, to whom thou say’st,
‘Beauty is truth, truth beauty—that is all
Ye know on earth, and all ye need to know.’115
Today, however, we can observe that the language of the
nineteenth century operated pursuant to these very base
assumptions, the key operating milieu of this time: an objectively
ordered world predicated on belief of certain universal truths.
Perhaps belief animated the milieu more than truth. The culture
structured itself around a belief—reason and truth—that
regulated human conduct.
The use of language in this way can be an act of power, as
narratives portray specific meanings and realities.
In the
nineteenth century, the narrative was law as an objectively
ordered science. Conceptualizing law meant rooting society to
stable, consistent principles. There are advantages to stability; for
example, stability yields a certain comfort, if not trust, in proven
or accepted truths. But the narrative of stability tends to lock in
the views and aspirations of the entrenched elements of society,
114. LLWELLYN, supra note 51; See generally MORTON J. HORWITZ, THE
TRANSFORMATION OF AMERICAN LAW, 1780-1860 (1977) (describing the change
from the classical nineteenth century model of law).
115. John Keats, Ode on a Grecian Urn (1820), in THE OXFORD BOOK
OF ENGLISH VERSE 1250-1918 633 (Sir Arthur Quiller-Couch ed., 1968).
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the very members that comprise the power structure of the social
order. In pre-industrial America, this may not have been such a
dramatic point. For, apart from immigration of some continental
Europeans, the American population of the era was essentially
homogenous, with the main dominant part still the Englishderived settlement of the founding period (Native Americans were,
simply, not integrated; African Americans were mainly treated as
slaves). The use of language can also be a more rebellious act of
power, as new narratives can help construct new realities.
Consider two historical examples: the use of common law in
England and the use of natural law by American rebels. Turning
first to common law, note how English lawyers of the seventeenth
century employed the language and law of the common law to
preserve their power and guard against the encroachment of the
power of the monarch in the Stuart dynasty, beginning with
James I, which sought to restore ancient royal prerogatives more
typical of traditional European monarchy, including the use of
civil law procedures and canon law.116 The aim of common law
lawyers was to preserve the common law to counter the power of
the Crown, which sought to extend its reach through greater
assertion of its law and courts, over and against the common law.
Common law lawyers and judges, such as Lord Edward Coke,
resorted to articulation of common law principles to formulate and
establish a rule of law covering, even the King, a heretical act in
the view of a King bent on restoring the rule of the divine right of
kings.117 The ultimate triumph of English common law illustrates
how language can be a decisive shaping mechanism in
effectuating change in society. Common law lawyers were
vanguards in the victory of Parliamentary forces against those of
the Crown. In this case, the Crown lost its head with the
beheading of Charles I in 1649.
The American Revolution was similar. To resist English
colonization, founding Americans invented a new narrative, the
narrative of natural law. This narrative justifed a new language
116. MARY ANN GLENDON, MICHAEL WALLACE GORDON & CHRISTOPHER
OSAKWE, COMPARATIVE LEGAL TRADITIONS: TEXT, MATERIALS AND CASES 446-47
(2d ed. 1994).
117. A vignette of the history is covered in STEPHEN B. PRESSER & JAMIL
S. ZAINALDIN, LAW AND JURISPRUDENCE IN AMERICAN HISTORY: CASES AND
MATERIALS 1 (5th ed. 2003).
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of human rights and the resultant break from England. The new
narrative of natural law drew upon the classical development of
natural law in Europe, English Whig theory, and writers such as
Grotius and Locke. But Americans fashioned it in new ways to
illustrate English oppression and the need to found society on new
conceptions of sovereignty, organization of government,
constitutionalism and human rights. A written Declaration of
Independence proclaiming man’s “inalienable rights”118 and a
movement toward written constitutionalism as the foundational
organizing charter of the country became the central focuses and
rallying points of the new country.
We could go on, but the point is clear: language can shape and
create new realities. Narrative makes a difference. We learn
these insights from our study and appreciation of language.
4. Structure: Metaphor
A further insight of poetry useful to law is appreciation of
what we might call the structure of language—the grammar,
syntax, sentence composition, structure and other devices used or
embedded in language. In poetry, the main structural device is
metaphor. Metaphor is the life of poetry as the poet uses
metaphor to transmit meaning. Poetry teaches us appreciation of
these rubrics of language, and they have application to law as
well.
In law, we tend to think of the ideals or theories of law, the
animating spirit around which a system of law is built. For
example, we might think of natural law, law and economics, legal
realism or critical theories as theories or ideals on which a legal
work is based. But these theories might as well be considered
metaphors; they are the rubrics that convey and lend the legal
work its meaning. For example, evaluating facts by law and
economics methodology will tend to yield a different meaning than
evaluation by critical legal studies.
Building a system on
positivism is likely to yield a structure different than one built on
natural law.
The theory of law is the metaphor of law,
transmitting and vesting meaning in the legal work.
Or we might consider the building of law on particular
constructs. Consider again the structuring of American tort law
118. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).
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upon the edifice of a “a fictitious person, who never has existed on
land or sea: the ‘reasonable man.’”119 The reasonable person
standard is used as an external, objective and uniform standard of
human behavior. Courts use the ideal of a “reasonable” person as
a means of measuring human actions against the norm of what a
reasonable person would do in certain circumstances.120 For
example, the Restatement (Second) of Torts identifies the
reasonable person as “the standard of conduct to which he must
conform to avoid being negligent . . . under like circumstances.”121
A “reasonable” person is a literary fiction, like a poem.
Or consider contract law from the perspective of “free and
equal bargaining positions” or exchanges of value based on “armslength” transactions.122 Use of these rubrics structures the law
along desired objectives, vesting it with particular meanings and
orientations, quite apart from whether these constructs are
actually manifested in fact.
Other areas of law rely on artifices or visions invented by
lawyer-man, not unlike poet-man. For example, the whole area of
corporation law, we might say, is built upon the fiction of a
corporation. A duly formed corporation has legal existence, as
other legal “persons” (e.g., partnerships, organizations, trusts),
and can have significant powers and capabilities. A corporation
can own, buy, sell or encumber property. A corporation can even
buy another corporation. A corporation can outlive its founders or
existing set of operating officers; a corporation can experience a
taste of eternity, unlike human beings (except maybe poets). Yet,
of course, a corporation does not live, breathe or talk (except
figuratively or through personification), unlike us. Instead, a
corporation exists as a figment of our imagination, one that
tangibly affects human existence, because of the life and power
bestowed on it by law and legal language vested with the
creativity of lawyers. A corporation is the essence of a poetic
fiction.
Employing the insights of language and its structure that we
gain from study of poetry, we can better appreciate the artifice on
119. W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW
TORTS § 32, at 174 (W. Page Keeton ed., 5th ed. 1984).
120. KEETON, supra note 119, at 173-74.
121. RESTATEMENT (SECOND) OF TORTS § 283, at 12 (1965).
OF
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which law is built. For example, consider accounting, a field with
wide impact on law and finance. The concept of depreciation
bestows significant financial advantages on its claimants. The
property subject to depreciation—deductions of recognizable costs
of wear and tear—loses progressively its value over time,
according to tax calculations. But the property may, in fact, be in
the same (or improved) state as at its purchase, according to a fair
market value determination. A piece of real estate to which
improvements are made would be an example. The difference in
valuation is attributable to a legal construct—tax-specific
depreciation tables—not to real-life, fair market value events.123
Depreciation, like a corporation, is a legal fiction. We might
consider it a metaphor of the law, transferring over meaning. In
ways like these, we can appreciate the creativity of lawyers.
Lawyers, like poets, can be meaning-makers.
Further, the ideals of law, like the ideals of poetry, animate
the spirit of the system or cosmos created. Consider ideals of
constitutional law—equality, liberty, fairness or, in judicial
proceedings, truth, to name a few. Is law and the language that
vests it with meaning any different than poetry? Consider some
ideals of poetry: beauty, truth, freedom, inspiration,
metamorphosis. Each of the language forms portrays a striving
for some ideal form not ordinarily attainable in daily life.
Study of poetry, we can see, is study of language and its
creation. The acts of creation can make order and structure. In
this way, poetry and law are alike. They are both products of
human imagination that shape and order life.
Study of poetry also uncovers the structure of language—the
edifice on which it stands. This insight of poetry leads us to the
study of legal language and directs us to the rudiments of
language on which the law is built. We gain greater appreciation
of the law—what it is, its origins, inspirations and aspirations.
These are all ways, albeit indirectly, illuminating the influence of
poetry on law.
VI. CONCLUSION
Our short study of the relationship between law and poetry
123. Conversation with Bruce Kogan, Professor of Law, Roger Williams
University School of Law, in Bristol, R.I. (Feb. 11, 2005).
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reveals that law and poetry share important relations between
them and exert mutual influence on each other. We have seen
that law and poetry share language as their working medium;
language shapes the chaos of experience in law and poetry; and
law and poetry are products of human ingenuity and imagination.
We have also observed that law and poetry differ from one
another as well. Law tends more toward the scientific dimension
of human thought; poetry tends more toward man’s artistic side.
Law is often an act of power; poetry makes no claim on power.
But more interesting than the interrelationships between the
two is their mutual influence on one another. Law is a frequent
topic of poetry; many people are or have been students and/or
practitioners of law and poetry. Courts employ poetry to make
their points; some judges write opinions in verse. Law and poetry
both reflect the culture they are situated in, and they can also
help constitute such culture. Study of poetry reveals important
insight into the structure and use of language which can uncover
discrete, even immanent, patterns in the law.
These observations lead to our point: since law reflects culture
and can also infuse culture, we need a deeper understanding of
the forces at work that comprise a culture. Poetry is one such
important force, as other forces such as history, geography,
language or technology. As our study of poetry shows, study of
culture calls upon us to examine more carefully the phenomena
that comprise a culture and evaluate them with new senses and
broader perspectives so that we can be sensitive to the raw
materials at the root of these forces.
Examination of the
underside of law is necessary if we are to obtain greater insight
into the phenomena on which a culture sits and a law operates.
Only then can we obtain new understandings of the
complicated process of law’s operation within a culture. In short,
we must be pioneers exploring new dimensions in order to return
home to our chosen field of law with greater understanding. Only
then can we better assume our roles of bringing and rendering
technical expertise and assistance within the cultural context in
which law sits. We should strive to be, in other words, translators
of law’s meanings.
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A Needed Image Makeover: Interest
Convergence and the United States’
War on Terror
Stephanie M. Weinstein*
I. INTRODUCTION
Recently, a diverse group of individuals decided that the time
had come to form an international coalition to counter the
conservative majority’s domination of the world’s political, social,
economic, and religious climate. All were welcome to participate in
the group, so that the initial international summit included people
of color, women, gays and lesbians, progressives, artists,
academics, workers subject to offshoring, unionists, Muslims,
Buddhists, Hindus, Jews, Christians, and others from all over the
world.
At the close of that first summit, Lawrence Ferlinghetti,1 an
* B.A., University of Michigan, with distinction (2001); J.D., University
of Pittsburgh (2005). For their enormous support of my work, helpful
comments, and continuing inspiration, I am grateful to Professors Richard
Delgado, Jean Stefancic, and Alexander Tsesis. I thank my parents, Joel and
Nancy Weinstein, my sister Elizabeth Weinstein, and my grandmother,
Lillian Weinstein, for their unwavering encouragement. A special thanks to
Nancy Weinstein for her tremendous effort in editing this article. Finally, I
am grateful to Amit Patel, Joseph DiPalo, and Megan Brown for the parts
they played in this effort.
1. Lawrence Ferlinghetti is an 85-year-old writer, painter, literary
maverick, and anti-establishment dissident who served as San Francisco’s
first poet laureate. San Francisco Poet, ONLINE NEWSHOUR, Dec. 27, 2002,
http://www.pbs.org/newshour/bb/entertainment/july-dec02/ferlinghetti_1227.html. He currently resides in San Francisco, CA where, in 1956, he
opened City Lights Book Store and began publishing works like Allen
Ginsberg’s manifesto of the beat generation, “Howl,” which begins with the
line “I saw the best minds of my generation destroyed by madness, starving,
403
WEINSTEIN
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American beat poet, read his poem, “Speak Out,” to move and
inspire his fellow activists in their upcoming work.
Speak Out2
And a vast paranoia sweeps across the land
And America turns the attack on its Twin Towers
Into the beginning of the Third World War
The war with the Third World
And the terrorists in Washington
Are drafting all the young men
And no one speaks
And they are rousting out
All the ones with turbans
And they are flushing out
All the strange immigrants
And they are shipping all the young men
To the killing fields again
And no one speaks
And when they come to round up
All the great writers and poets and painters
hysterical naked,” and continues to blame the materialism and spiritual
emptiness of American life for the destruction. Id. In 1958, Ferlinghetti
published “A Coney Island of the Mind,” a collection of poems which sold
enough copies to make him America’s best-selling poet of the twentieth
century. Id. Arguably, his best-known poem “I Am Waiting,” though written
forty-five years ago, remains relevant to the current world situation. Id. The
end of the poem reads: “I am waiting to get some intimations of immortality
by recollecting my early childhood, and I am waiting for the green mornings
to come again, youth’s dumb green fields come back again . . . and I am
waiting to write the great indelible poem, and I am waiting for the last, long,
careless rapture, and I am perpetually waiting for the fleeing lovers on the
Grecian urn to catch each other up at last and embrace, and I am waiting,
perpetually and forever, a renaissance of wonder.” Id. “I Am Waiting”
evokes a sense of longing to return to a childhood innocence, and the use of
color imagery immediately calls up the color stages of the terror alerts.
2. Lawrence Ferlinghetti, Speak Out, POETS AGAINST WAR,
http://www.poetsagainstthewar.org/chapbook.asp (last visited Oct. 24, 2005).
WEINSTEIN
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A NEEDED IMAGE MAKEOVER
405
The National Endowment of the Arts of Complacency
Will not speak
While all the young men
Will be killing all the young men
In the killing fields again
So now is the time for you to speak
All you lovers of liberty
All you lovers of the pursuit of happiness
All you lovers and sleepers
Deep in your private dreams
Now is the time for you to speak
O silent majority
Before they come for you
The subsequent gatherings, whose participants communicated
via satellite video over the internet, proved to be revolutionary both
in their form and substance. During these early consciousness
raising conferences, the activists discussed ideas for the ultimate
direction the coalition would take and raised many difficult
questions.
The Americans in the group were particularly vocal, as they
all shared a common concern over the conservative policies and
agendas of the current administration. A young American woman
wondered why, although the United States is supposedly fighting
to advance the rights of Islamic women abroad, it denies its own
women procreative rights and uncomplicated access to abortion
services.3 An African American man expressed dismay over the
disproportionate number of young black and Latino men in
prison.4 A Latino professor related a story about being the subject
3. The United States denies women late-stage abortions, information
regarding sex, and access to free condoms and other types of birth control.
See Editorial, The War Against Women, N.Y. TIMES, Jan. 12, 2003, § 4, at 14
(discussing the Bush Administration’s efforts to restrict women’s access to
the right to have an abortion).
4. See Randall Kennedy, McClesky v. Kemp: Race, Capital Punishment,
and the Supreme Court, 101 HARV. L. REV. 1388, 1420-22 (1988) (highlighting
the race disparity in capital sentences).
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of racial profiling by white police officers while leaving a
conference of law professors with his professor wife.5 A middle
aged Indian American couple seethed about being held for two
hours by airport security, who suspected them of being terrorists
because of their race. Two gay partners explained their sorrow
about not being able to legally marry in the United States. An
atheist school teacher described her discomfort with the “one
Nation, under God” section of the Pledge of Allegiance, which she
must recite every day with her second graders, even though she
does not believe that god exists.6
The brainchild of a young woman lawyer and activist, Sophie
Meren,7 the coalition publicly announced its campaign as President
George W. Bush was sworn into office for a second term on
January 20, 2005. Meren’s initial strategy revolved around a
broad informational initiative to encourage minorities to push for
lasting concessions from the countries of the world, particularly the
United States. As Derrick Bell posited,8 interest convergence served
as a powerful tool for understanding gains minorities achieved
during the Cold War, including the famous school desegregation
5. The author learned of this true but anecdotal occurrence through a
series of conversations with Richard Delgado and Jean Stefancic in the fall of
2004. See also Richard Delgado, Crossroads and Blind Alleys: A Critical
Examination of Recent Writing About Race, 82 TEX. L. REV. 121, 139 (2003)
(book review) [hereinafter Delgado, Crossroads].
6. See Natalie Angier, Against Toleration, N.Y. TIMES, Sept. 5, 2004, § 7,
at 19 (reviewing “The End of Faith” by Sam Harris and explaining that
liberals and conservatives agree that criticism of a person’s faith is currently
so taboo that any rational discussion of religion is thought to be impolitic.
Harris argues that religious moderates “thwart all efforts to criticize
religion’s literalism. By preaching tolerance, they become intolerant of any
rational discussion of religion and ‘betray faith and reason equally’”).
7. Storytelling is an important method used in legal discourse, which
was popularized by Derrick Bell. This tool, including “[s]tories, parables,
chronicles, and narratives [is a] powerful means for destroying mindset - the
bundle of presuppositions, received wisdoms, and shared understandings
against a background of which legal and political discourse takes place.”
Richard Delgado, Storytelling for Oppositionists and Others: A Plea for
Narrative, 87 MICH. L. REV. 2411, 2413 (1989).
8. See Derrick Bell, Brown v. Board of Education and the InterestConvergence Dilemma, 93 HARV. L. REV. 518 (1980) (providing a description of
Bell’s radical interest-convergence theory). See also MARY L. DUDZIAK, COLD
WAR CIVIL RIGHTS: RACE AND THE IMAGE OF AMERICAN DEMOCRACY (2001)
[hereinafter DUDZIAK, COLD WAR CIVIL RIGHTS] (showing that Bell’s interest
convergence theory does in fact hold true in the case of the Cold War).
WEINSTEIN
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407
resulting from Brown v. Board of Education.9 Meren and her
colleagues believe that because of the current world situation and
the desperate need of the United States to gain allies in its war
against terrorism and the radical wing of Islam, the United States
may be willing to temporarily indulge the wishes of minorities
because it would be in the majority’s benefit to do so.
The United States’ urgent need to gain allegiance of foreign
countries to help fight its war on terror is indeed forcing it to
grant concessions to domestic minorities and religions to present a
positive image of itself to the rest of the world, just as Bell’s
interest convergence theory would predict. Minorities may wish to
seize this rare opportunity to press for even greater and more
permanent advances at this opportune time. Part II explains
Derrick Bell’s interest convergence theory and its relevance to
Brown v. Board of Education. Part III explores the meaning of
interest convergence in today’s world, with the United States
currently in need of allies in its war against terrorism and the
radical wing of Islam. Part IV makes the case that the United
States’ cause is not progressing particularly well, so that it has
thus been granting token concessions to various minority groups
and religions to help buttress its image internationally. Part V
concludes by addressing the means by which minorities might
take advantage of this fortuitous and fleeting alignment of
interests by pressing for larger, enduring concessions that might
otherwise be unattainable from an increasingly conservative
society.
II. DERRICK BELL’S INTEREST CONVERGENCE THEORY
“The essential precondition for the effectiveness of law, in
its function as ideology, is that it shall display an
independence from gross manipulation and shall seem to
be just.” – E.P. Thompson10
In 1954, the United States Supreme Court handed down the
revolutionary school desegregation decision Brown v. Board of
9. 347 U.S. 483 (1954) (striking down school segregation under the
“separate but equal” doctrine).
10. E.P. THOMPSON, WHIGS AND HUNTERS: THE ORIGIN OF THE BLACK ACT
262 (1975).
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Education (“Brown I”). In Brown I, the Court held that the
segregation of white and black children in the public schools
denied black children equal protection of the laws as guaranteed
by the Fourteenth Amendment, even though physical facilities
and other “tangible” factors of the segregated schools may have
been equal.11 The Court therefore ruled that separate schools
were inherently unequal and reversed the decision of the lower
court for legal and social scientific reasons.12 In the Court’s
mandate to actually make desegregation take place (“Brown II”) it
ordered the transition to desegregation to occur “with all
deliberate speed.”13
A. Brown and Bell’s Interest Convergence
While many celebrated Brown as a great breakthrough for
racial justice, Derrick Bell notes in his groundbreaking article,
Brown v. Board of Education and The Interest-Convergence
Dilemma, that school segregation was still pervasive even in
1980.14 In fact, black children mostly attended inferior and
isolated public schools at that time.15 Bell hypothesizes that
Brown exemplified an “interest convergence” case, in that the
white majority only advanced black students’ interest in equality
because it converged, momentarily, with the interests of whites.16
Further, Bell posits that the Fourteenth Amendment, on its own,
will not grant a judicial remedy to provide actual racial equality
for blacks where the remedy “threatens the superior societal
status of middle and upper class whites.”17 As a result, “[r]acial
remedies may instead be the outward manifestations of unspoken
11. Brown, 347 U.S. at 493, 495.
12. Id.
13. Brown v. Bd. of Educ., 349 U.S. 294, 301 (1955). See generally
CHARLES J. OGLETREE, JR., ALL DELIBERATE SPEED: REFLECTIONS ON THE FIRST
HALF-CENTURY OF BROWN V. BOARD OF EDUCATION (2004) (arguing that Brown
was a failure and that in order to improve educational opportunities for poor
blacks, society must put its resources into charter schools and after school
programs and highlighting the nation’s limited commitment to racial justice);
MICHAEL KLARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME COURT
AND THE STRUGGLE FOR RACIAL EQUALITY (2004) (presenting a similar point of
view in his 2003 book).
14. Bell, supra note 8, at 518.
15. Id.
16. Id. at 523.
17. Id.
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and perhaps subconscious judicial conclusions that the remedies,
if granted, will secure, advance or at least not harm societal
interests deemed important by middle and upper class whites.”18
Courts and policy makers may therefore advance racial justice, or
its appearance, because they determine it to be important to their
interests.19
Bell then proceeds to describe in pragmatic terms the reasons
for the Court’s abrupt break from the separate but equal doctrine
of Plessy v. Ferguson.20 In doing so, he postulates that the Court’s
retreat from its position in Plessy cannot be comprehended
without consideration of Brown’s value to the white majority.21
The white majority Bell refers to includes not only those
concerned with the “immorality of racial inequality, but also those
whites in policy-making positions able to see the economic and
political advances at home and abroad that would follow” from
Brown’s mandate of desegregation.22
Bell highlights how Brown helped to win the support of the
Third World in America’s struggle with Communist countries
during the Cold War.23 Both government and NAACP lawyers
who argued the case employed this line of reasoning.24 News
media conjectured that Brown’s impact internationally would be
extremely important, “scarcely less important than its effect on
the education of black children.”25 A piece in Time magazine
stated that, “[i]n many countries, where U.S. prestige and
leadership have been damaged by the fact of U.S. segregation, it
[Brown] will come as a timely reassertion of the basic American
principle that ‘all men are created equal.’”26
Bell continues by describing how Brown reassured American
18. Id.
19. Id.
20. Id. at 524. See also Plessy v. Ferguson, 163 U.S. 537 (1896)
(establishing the “separate but equal” doctrine).
22. Id.
23. Id. The term “Third World” refers to countries that are not as
industrialized or technologically advanced as OECD countries such as the
United States. Third World, WIKIPEDIA, http://en.wikipedia.org/wiki/Third_
World (last visited Jan. 18, 2006).
24. Id.
25. Id.
26. Id.
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black veterans that the “precepts of equality and freedom so
heralded during World War II might yet be given meaning at
home.”27 At the time, black veterans were the subjects of constant
discrimination and were violently attacked in the South in a
manner similar to that which they suffered at the end of World
War I.28 It is altogether possible that the Court responded with
Brown to its fear of the rising sentiment among blacks, as
movingly described by Paul Robeson: “[i]t is unthinkable . . . that
American Negroes would go to war on behalf of those who have
oppressed us for generations . . . against a country [the Soviet
Union] which in one generation has raised our people to the full
dignity of mankind.”29
Bell surmises that some whites wanted to increase their
profits by industrializing the South.30 It was therefore in their
economic benefit to end the struggle to preserve state-sponsored
segregation and thus capitalize on the potential of the Sunbelt.31
Thus, Brown was a welcome development for whites who
desired an end to segregation for moral and pragmatic reasons.32
At the time of Bell’s article, unstable Supreme Court majorities
upheld sweeping desegregation plans ordered by the authors of
27. Id.
28. Id.
29. Id. at 525. Paul Robeson was a slave’s son. He was the third black
student to enroll at Rutgers University. Paul Robeson: A Brief Biography,
ELECTRONIC NEW JERSEY: A DIGITAL ARCHIVE OF NEW JERSEY HISTORY,
http://www.scc.rutgers.edu/njh/PaulRobeson/PRBio.htm (last visited Oct. 25,
2005). He went on to obtain a law degree at Columbia University. Id. After
facing discrimination in his practice of law, Robeson returned to his childhood
love of drama and singing. Id. In his performances, he acted on his belief
that music is universal and that by performing spirituals and other cultures’
folk songs, he could promote intercultural understanding. Id. During the
1940s, while traveling around the world to perform, Robeson found the Soviet
Union to be a tolerant and friendly nation. Id. He protested the mounting
Cold War hostilities, and questioned why African Americans should support a
government that did not treat them as equals. Id. Through his stance
against inequality and oppression, Robeson helped to inspire the civil rights
movement of the 1960s. Id.
31. Id.
32. Id. As a result of the desegregation mandate, poor whites experienced
a sense of betrayal and became afraid of losing power over their schools and
facilities. They had assumed that wealthy whites would continue to
perpetuate the lower class of whites in a superior societal status than blacks.
Id. at 526-27.
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Brown.33 Bell reinforces his racial realist argument by suggesting
that the reservations of the Brown concurrences and the vigorous
dissents warn against optimism in controversial areas of civil
rights law.34
Bell’s interest convergence theory, therefore, explains the
monumental Brown decision as an illustration of the rule that
progress toward racial equality occurs only when it is in the
interest of whites to prevent upheaval.35 In other words, sadly,
often only when minority and majority interests converge do
minorities become chance beneficiaries of legal and policy
decisions.36 The Brown I court was aware that its move away
from separate but equal doctrine and toward desegregation
mandates would help the country in its competition with
Communist nations abroad during the Cold War and mollify
dissident factions at home.37
B. Dudziak’s Reinforcement of Interest Convergence
“It is in the context of the present world struggle between
freedom and tyranny that the problem of racial
discrimination should be viewed.” – Brief for the United
States as Amicus Curiae, Brown v. Board of Education38
33. Id. at 527.
34. Id. See also Cass R. Sunstein, Did Brown Matter?, THE NEW YORKER,
May 3, 2004, at 102 (discussing Michael J. Klarman’s reconstruction, through
Justice Department conference notes and draft opinions, of the Brown I
court’s internal deliberations). See also KLARMAN, supra note 13 (highlighting
that the Brown court brought about little desegregation because it did not
have the power to overcome local resistance).
35. Bell, supra note 8, at 523; David L. Chappell, If Affirmative Action
Fails . . . What Then?, N.Y. TIMES, May 8, 2004, at B7, 9. See also DERRICK
BELL, SILENT COVENANTS: BROWN V. BOARD OF EDUCATION AND THE
UNFULFILLED HOPES FOR RACIAL REFORM (2004) (advancing the proposition
that the major impetus for the Emancipation Proclamation at the time of the
Civil War was to gain Union advantage). Cf. SHERYLL CASHIN, THE FAILURES
OF INTEGRATION: HOW RACE AND CLASS ARE UNDERMINING THE AMERICAN
DREAM (2004).
36. Christopher Benson, Strange Justice: Two Books Wrestle With a
Historic Supreme Court Decision’s Incomplete Legacy, WASH. POST, May 16,
2004, Book World at 5 (comparing Derrick Bell’s Silent Covenants and
Charles Ogletree’s All Deliberate Speed).
37. Sunstein, supra note 34, at 104.
38. Mary L. Dudziak, Desegregation as a Cold War Imperative, 41 STAN.
L. REV. 61, 61 (1988) [hereinafter Dudziak, Desegregation].
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Mary Dudziak explores Bell’s interest convergence theory in
her 2000 book Cold War Civil Rights.39 Dudziak also argues that
interest convergence prompted the elimination of de jure
segregation and that the United States did not have more
She investigates Bell’s
extensive hopes for racial justice.40
contentions that interest convergence explains the Brown I
decision through her analysis of many archival documents.41 As a
result of her thorough investigation, Dudziak confirms Bell’s
hypothesis that civil rights gains for minorities during the Cold
War period were the result of foreign policy objectives that did not
specifically encompass civil rights.42
For example, in its brief before the Brown I court, the
Department of Justice quoted then Secretary of State Dean
Acheson, writing that racial segregation and discrimination gave
other unfriendly governments “‘the most effective kind of
ammunition for their propaganda warfare,’” and persisted as “‘a
source of constant embarrassment to [the United States]
government in the day-to-day conduct of its foreign relations.’”43
The Department of Justice also argued in its brief that
desegregation was in the nation’s interest regarding its foreign
policy affairs.44 Brown I, the Department of Justice contended,
was important because “‘[t]he United States [wa]s trying to prove
to the people of the world, of every nationality, race and color, that
a free democracy is the most civilized and most secure form of
government yet devised by man.’”45 Following the Brown decision,
press around the world celebrated the case as a “‘blow to
communism’ and a vindication of American democratic
principles.”46 Further, the Truman Administration structured
39. See DUDZIAK, COLD WAR CIVIL RIGHTS, supra note 8.
40. Dudziak, Desegregation, supra note 38, at 64.
41. Alexander Tsesis, Justice at War and Brown v. Board of Education,
47 HOW. L.J. 361, 367 (2004) (book review). See also RICHARD DELGADO,
JUSTICE AT WAR: CIVIL LIBERTIES AND CIVIL RIGHTS DURING TIMES OF CRISIS
(2003) (extending Bell’s interest convergence theory to the split between the
moderate and radical factions of the civil rights movement in the 1960s and
70s).
42. DUDZIAK, COLD WAR CIVIL RIGHTS, supra note 8, at 252-53.
43. Sunstein, supra note 34, at 104.
44. Dudziak, Desegregation, supra note 38, at 65.
45. Id. (quoting Brief for the United States as Amicus Curiae at 6, Brown
v. Bd. of Educ., 347 U.S. 483 (1954) (Nos. 1, 2, 4, 10)).
46. Id. (quoting N.Y. TIMES, May 18, 1954, at A19).
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United States government policy regarding civil rights issues in
accordance with the international implications of America’s racial
Particularly of interest regarding today’s world
problems.47
climate, the Truman Administration “impressed upon the
Supreme Court the necessity for world peace and national security
of upholding black civil rights at home.”48
Dudziak also considers other countries’ attention to
She
discrimination based on race in the United States.49
demonstrates that race discrimination was an international issue,
on which the Soviet Union capitalized, framing it as an American
weakness.50 The United States Department of State deemed the
issue a serious foreign policy concern.51 Dudziak thus proves with
concrete evidence what Bell posited about interest convergence
years earlier.
C. Other Scholars of Interest Convergence
Many other critical theory scholars deploy Bell’s interest
convergence to powerful effect. For example, Richard Delgado
writes about Bell’s racial realism. Delgado shows how interest
convergence explains civil rights progress more than moral
concerns do.52 He breaks down white materialistic interest and its
relation to minority fortunes in a variety of categories.53 Delgado
writes that “throughout history, whites have subordinated blacks
and other people of color in order to advance their own economic
self interest . . . . Slavery . . . conferred a great economic benefit
on the South . . . [as did] Chinese coolie labor, the Bracero
Program and Alien Land Laws that cut down on the competition
from expert Japanese Farmers.”54
Delgado also extends Bell’s interest convergence to the split
between the moderate and radical factions of the civil rights
47. Id.
48. Id.
49. Id. at 66.
50. Id.
51. Id.
52. Delgado, Crossroads, supra note 5, at 128-29.
53. Richard Delgado, White Interests and Civil Rights Realism: Rodrigo’s
Bittersweet Epiphany, 101 MICH. L. REV. 1201, 1210 (2003) [hereinafter
Delgado, White Interests].
54. Id. See also JUAN PEREA ET AL., RACE AND RACES: CASES AND
RESOURCES FOR A DIVERSE AMERICA 91-428 (2000).
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movement in the 1960s and 70s.55 Delgado and Jean Stefancic
consider a variety of “homeo-mechanisms” having to do with
interest convergence that continue to help explain “racial
replication” in the United States.56
Delgado suggests in a recent article that no critical race
theorist had analyzed whether and how interest convergence
theory describes the current world situation, with the United
States at war against terrorism and the radical wing of Islam.57
In 1954, the country’s civil rights problem was concrete - de jure
segregation. The civil rights concerns of our time strike many as
remote and abstract, lacking in the concrete urgency of former
times. As a result, many race scholars today forego real-world
analysis of concrete problems for examination of text, mindset,
and discourse.58 Still, as the next sections show, the pragmatism
of interest convergence theory does apply to the current world
situation. The United States’ attempt to change its image
internationally because it needs to secure the allegiance of other
countries in fighting its war on terror is the latest example of the
majority’s interest benefiting minorities’ social status.
III. AMERICA’S REPUTATION – IN NEED OF A MAKEOVER?
“Criticism, as we in the movement for minority rights have
every reason to learn, is a synonym for neither cowardice
nor capitulation. It may instead bring awareness, always
the first step toward overcoming still another barrier in
the struggle for racial equality.” – Derrick A. Bell, Jr.59
Many of America’s former allies view the United States as a
religion-obsessed world imperialist power, acting under the thrall
of large corporations to advance a global corporate agenda. The
55. Delgado, Crossroads, supra note 5, at 129. See also Delgado, White
Interests, supra note 53.
56. Richard Delgado & Jean Stefancic, The Racial Double Helix: Watson,
Crick, and Brown v. Board of Education (Our No-Bell Prize Award Speech),
47 HOW. L.J. 473, 479-88 (2004). Homeo-mechanism in this context refers to
the way culture replicates itself. Id. at 479.
57. Delgado, Crossroads, supra note 5, at 138. Delgado also suggested
this application of Bell’s interest convergence theory in his classroom
teaching and public speaking, thus challenging the author to address this gap
in Critical Race Theory scholarship herself.
58. See Delgado, Crossroads, supra note 5, at 131-32.
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United States has an extremely poor record with respect to health
care and health insurance disparities, funding of public education,
harassment of Muslims and others of Middle Eastern descent, and
suppression of women’s rights. As a result of this record, the
United States is presently experiencing a chilling of relations with
its European and other allies. America is undergoing an image
crisis both at home and abroad.
The United States is suffering from a loss of credibility in the
Muslim world and in Europe. Al Jazeera, the Arab world’s major
news source, exemplifies that community’s exceptionally negative
view of America and Americans. European writers such as
Arundhati Roy and the late Edward W. Said express their disdain
for United States policies.60 In fact, even the United States
government openly recognizes and is trying to address its image
problem.
A. America’s Reputation in the Muslim World
“Friends . . . We’re in trouble in Iraq.
We have to
immediately get the Democratic and Republican politics
out of this policy . . . . If we do not, we’ll end up not only
with a fractured Iraq, but with a fractured America, at
war with itself and isolated from the world.” – Thomas L.
Friedman61
Al Jazeera consistently portrays the United States in a
negative light. In the first sentence on its “Iraq Under Occupation
Page,” the news source reports that “[the] occupation of Iraq is
regarded as the reemergence of the old colonialist practices of the
western empires in some quarters.”62 At the conclusion of its
profile of Vice President Dick Cheney, Al Jazeera criticizes
Cheney’s overstatement of “the threats America faces and its need
for military rather than political means” to deal with these
threats.63 The article also depicts an attitude in Washington that
60. See infra notes 83-86 and accompanying text.
61. Thomas L. Friedman, Iraq: Politics or Policy, N.Y. TIMES, Oct. 3,
2004, § 4, at 11.
62. Iraq Under Occupation, AL JAZEERA.NET, http://english.aljazeera.
net/NR/exeres/8245212D-39CC-4E6E-80FF-2E1F29F72BC5.htm (last visited
Oct. 25, 2005).
63. Dick Cheney, AL JAZEERA.NET, http://english.aljazeera.net/special/
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is generally disdainful of international law.64
Al Jazeera writers further point out the disconnect between
the United States’ rhetoric and its international actions. The
news source attacks the United States for “[f]ailing to ratify the
majority of international agreements,” leading to a loss of
credibility “at offering any kind of global leadership.”65 Examples
of non-ratification include President George W. Bush’s decision to
desert the Anti-Ballistic Missile Treaty and eschew the
International Criminal Court.66 In its article “US Scorn for
International Law Blasted,” Al Jazeera cites a study by the
Institute for Agriculture and Trade Policy (hereinafter “IATP”), an
American organization in Washington, D.C., which found that the
United States has only ratified fourteen out of 162 “active
treaties” of the International Labor Organization and only two of
eight “core” United Nations conventions that safeguard the rights
of workers.67 The IATP also found that the United States
approved only three of eleven major environmental treaties, five
out of the twelve human rights treaties endorsed by the United
Nations High Commissioner for Human Rights, and about half of
the twenty-three treaties regulating intellectual property and
technological rights.68
Al Jazeera reports that United Nations Secretary General
Kofi Annan described the American-led Iraqi invasion as illegal
and a violation of the United Nations Charter.69 Najib Ghadban
writes that the Bush Administration’s justifications for the war on
Iraq - Saddam Hussein’s alleged possession of weapons of mass
profiles/cheney_txt.htm (last visited Oct. 21, 2005).
64. Id.
65. US Scorn for International Law Blasted, AL JAZEERA.NET, Sept. 30,
2004,
http://english.aljazeera.net/NR/exeres/1EA2F3BB-7933-40E2-95EDFE49777EC616.htm. See also SEYMOUR M. HERSH, CHAIN OF COMMAND: THE
ROAD FROM 9/11 TO ABU GHRAIB (2004); Michael Ignatieff, What Geneva
Conventions? Seymour Hersh Explains How the United States Came to
Violate the Very Rights It Promised to Restore in Iraq, N.Y. TIMES, Oct. 17,
2004, § 7, at 13.
66. US Scorn for International Law Blasted, supra note 65.
67. Id.
68. Id.
69. Annan: U.S. Invasion of Iraq Was Illegal, AL JAZEERA.NET, Sept. 16,
2004,
http://english.aljazeera.net/NR/exeres/2AA1310F-798C-4666-AE76DCB6370C75CC.htm. See also Editorial, The Rule of Law at Gitmo, N.Y.
TIMES, Nov. 10, 2004, at A24 (discussing the Bush Administration’s noncompliance with international law).
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destruction, his links to terrorists, and the liberation of Iraqis
from tyranny and oppression - were convenient excuses for
mustering the support of the American public.70
Al Jazeera reported that the Bush Administration is
promoting a false image of a civil war in Iraq as an alleged reason
to continue its occupation.71 In fact, according to staff writer
Mustafa al-Bazergan, the reality is that a popular uprising is
taking place against United States forces.72 In another article,
columnist Ahmad al-Quni reports that United States policy
toward Iraq has always been focused on Iraq’s rich oil resources,
its strategic geographic location on the Persian Gulf, and its
regional weight.73 An analysis by Shaheen Chunghati accuses
Bush and British Prime Minister Tony Blair of being war
criminals because of their use of illegal weapons of mass
destruction against Iraqis.74
Further, Al Jazeera criticizes the United States’ treatment of
racial minorities, quoting former President Jimmy Carter who
said that a “fumbling attempt has been made recently to
disqualify 22,000 African Americans [likely Democrats], but only
70. Najib Ghadban, The War on Iraq: Justifications and Motives, AL
JAZEERA.NET, Aug.
10,
2003,
http://english.aljazeera.net/NR/exeres/
FC73D48E-EE6F-4C4E-BD67-C8C1179E97CC.htm.
See also Imad
Khadouri, Circle of Lies Coming to a Close, AL JAZEERA.NET, Aug. 10, 2003,
http://english.aljazeera.net/NR/exeres/D9D2791A-EA23-4C23-AB8A-D7EB77
AA8A1D.htm (discussing the United States’ false justifications for invading
Iraq).
71. Mustafa al-Bazergan, Bush’s High-Risk Civil War Scam, AL
JAZEERA.NET, Sept. 27, 2004, http://english.aljazeera.net/NR/exeres/
68184A67-1FFD-43D8-93C8-751BE89BACDC.htm.
72. Id.
73. Ahmad al-Quni, Iraq Oil – The Target For Years, AL JAZEERA.NET,
Aug. 10, 2003, http://english.aljazeera.net/NR/exeres/E07D937C-456F-48C990FF-A2C87F2DB724.htm. See Ahmad al-Quni, Increasing Dependence On
Oil
Imports,
AL
JAZEERA.NET,
Aug.
10,
2003,
http://english.
aljazeera.net/NR/exeres/2CDA8F31-A5D7-4071-B12D-1B804E1C15EE.htm.
See also Thomas L. Friedman, The Battle of the Pump, N.Y. TIMES, Oct. 7,
2004, at A35 (discussing how “[t]he Arab-Muslim world is in a must-change
human development crisis, but oil is like a narcotic that kills a lot of the pain
for them and prevents real change,” says David Rothkopf, a visiting scholar
at the Carnegie Endowment for International Peace).
74. Shaheen Chughtai, Washington’s Secret Nuclear War, AL
JAZEERA.NET,
Sept.
7,
2004,
http://english.aljazeera.net/NR/exeres/
B2E2DF9B-1E0C-43F4-BBF6-074C1367E27C.htm.
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61 Hispanics [likely Republicans], as alleged felons.”75
Contributor Imad Khadduri criticizes America’s democracy by
claiming that it is “misguided” because of such small numbers of
United States citizens voting in the 2000 presidential election.76
Khadduri quotes Senator Robert Byrd from his new book, Losing
America: Confronting a Reckless and Arrogant Presidency, in
which Byrd perceives a grave threat to America’s democracy and
Constitution because “[n]ever . . . ha[s] America been led by such a
dangerous head of state.”77
Senator Joe Biden, Al Jazeera reports, called for an expansion
in American radio and television broadcasts to the Muslim world
to repair America’s image problem.78 Thomas L. Friedman writes
in his New York Times Op-Ed column Jews, Israel and America
that Iraqis distrust American forces and have come up with a
nickname for United States troops.79 The Iraqis “call American
soldiers ‘The Jews,’ as in ‘Don’t go down that street, the Jews set
up a roadblock.’”80 A widespread perception holds that in the
“Arab-Muslim world . . . the great enemy of Islam is JIA - Jews,
Israel and America” and therefore that Jews are the universal,
ubiquitous menace.81
Even the relatively moderate Senator Herb Kohl warned that
“winning the hearts and minds of the Arab world is vital to our
success in the war on terror” and that “[p]hotographs that have
come out of Abu Ghraib have undoubtedly hurt those efforts.”82
75. Carter Predicts Unfair Vote in Florida, AL JAZEERA.NET, Sept. 27,
2004,
http://english.aljazeera.net/NR/exeres/B419BBEA-B3BB-4055-A3E12E920033CBB2.htm.
76. Imad Khadduri, Bush’s America Asks: Why Us?, AL JAZEERA.NET,
Sept. 23, 2004, http://english.aljazeera.net/NR/exeres/BD2F209D-4C66-482496A6-184F23AC8ABC.htm.
77. Id.
78. Senator Proposes Muslim Media Blitz, AL JAZEERA.NET, Sept. 30,
2004,
http://english.aljazeera.net/NR/exeres/E3C60CE0-C16F-47BB-AB0B41FF5AAC63B6.htm.
79. Thomas L. Friedman, Jews, Israel and America, N.Y. TIMES, Oct. 24,
2004, § 4, at 11. See Thomas L. Friedman, The Other Intelligence Failure,
N.Y. TIMES, Oct. 10, 2004, § 4, at 11 (explaining the surge of an Islamic
identity over the past few decades).
80. Friedman, Jews, Israel and America at 11.
81. Id.
82. Jonathan Schell, Letter from Ground Zero: What is Wrong with
Torture, NATION, Feb. 7, 2005, at 8.
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419
B. America’s Reputation in Europe and Elsewhere
‘“The conquest of the earth, which mostly means the
taking it away from those who have a different complexion
or slightly flatter noses than ourselves, it is not a pretty
thing when you look into it too much. What redeems it is
the idea only. An idea at the back of it; not a sentimental
pretence but an idea; and an unselfish belief in the idea –
something you can set up, and bow down before, and offer
a sacrifice to . . . .’” – Joseph Conrad, Heart of Darkness83
The United States has also lost a great deal of its credibility
in Europe, as it is viewed as a nation attempting to conquer
vulnerable nations. The late Edward W. Said, in his book Culture
and Imperialism, argues that the United States is an imperialist
power and engages in the economic and cultural rape of weaker
countries.84 Arundhati Roy posits that the demands of global
capitalism drove the United States to war in Iraq.85 In her latest
book, The Ordinary Person’s Guide To Empire, she links the
pursuit of empire through many spheres.86 She finds parallels
between Iraqi construction contracts, international mass media
propaganda, South African AIDS, American poverty, and Indian
caste politics.87
83. JOSEPH CONRAD, HEART OF DARKNESS 7 (Enriched Classics ed., Pocket
Books 1972) (1902).
84. EDWARD W. SAID, CULTURE AND IMPERIALISM 281-303 (1993).
American cultural imperialism is rampant in the Arab world. The Arab
world has become extremely commercialized, with American brands gaining
increasing popularity. Id.
85. Arundhati Roy, Not Again: Tomorrow thousands of people will take to
the streets of London to protest against an attack on Iraq, THE GUARDIAN
(LONDON), Sept. 27, 2002, at Features 2-3. See Arundhati Roy, The Algebra of
Infinite Justice, THE GUARDIAN (LONDON), Sept. 29, 2003, at Saturday Review
(challenging the United States’ instinct for vengeance); Arundhati Roy,
Mesopotamia, Babylon, The Tigris and Euphrates, THE GUARDIAN (LONDON),
Apr. 2, 2003, at Features, available at http://www.guardian.co.
uk/g2/story/0,3604,927712,00.html (expressing disapproval of American
policy and action toward Iraq). A classically trained architect, Arundhati Roy
is a widely published essayist who won the Booker Prize for her novel, THE
GOD OF SMALL THINGS. She currently lives in New Delhi, where she pursues
her social activism. See also Jonathan Tepperman, The Anti-Anti-Americans,
N.Y. TIMES, Dec. 12, 2004, § 7, at 24-25.
86. ARUNDHATI ROY, AN ORDINARY PERSON’S GUIDE TO EMPIRE (2004).
87. Id.
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European intelligence officials are afraid that because of the
United States’ war in Iraq, a new generation of disaffected
European Muslims could use this as a “galvanizing cause that
sends idealistic young men abroad, trains them and puts them in
touch with a more radical global network of terrorists.”88 Officials
fear that these young Europeans, like those who fought in wars in
Afghanistan, Bosnia, and Chechnya, may return to Europe to plot
terrorist attacks there.89
Thomas L. Friedman, in his essay Addicted to 9/11,
highlights how the United States has lost its balance and is being
transformed by its war on terror.90 The Bush Administration’s
exploitation of 9/11 “created a wedge between . . . America and the
rest of the world, between America and its own historical identity,
and between the president and common sense.”91 For instance,
tension grew between the United States and Spain after Spain’s
newly elected Prime Minister José Luis Rodríguez Zapetero
withdrew his forces from Iraq in April.92 Spanish Defense
Minister José Bono made a variety of anti-American comments
while anti-American sentiments are becoming more common
among the Spanish public.93
Others criticize President George W. Bush’s supposed
“Mandate of Heaven,” which is meant to elicit images of the
influential neo-Confucianism of the Chinese Empire.94 Some
argue that the United States is seeking not simply imperial
centralization but hegemony over the existing “‘Core and
Periphery,’” or the entire world.95 Additionally, progressives such
as James H. Mittleman assert that the United States, in its
invasion of Iraq and other countries, is attempting to “secure
88. Craig S. Smith & Don Van Natta, Jr., Officials Fear Iraq’s Lure for
Muslims in Europe, N.Y. TIMES, Oct. 23, 2004, at A1.
89. Id.
90. Thomas L. Friedman, Addicted to 9/11, N.Y. TIMES, Oct. 14, 2004, §
1, at 29.
91. Id.
92. Renwick McLean, Old Friends U.S. and Spain Weather a Time of
Tension, N.Y. TIMES, Oct. 17, 2004, § 1, at 11.
93. Id.
94. William Marina, George W. Bush & the “Mandate of Heaven,”
COMMON DREAMS NEWS CENTER, Oct. 5, 2004, http://www.commondreams.
org/views04/1005-27.htm.
95. Id.
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economic globalization by military means.”96 Condemnation of the
Bush Administration centers around the president’s placing more
value on waging seemingly endless wars than making America
more secure, while he tries to hide under his “vast cloud of
patriotism.”97 Further, the United States comes under criticism
because George W. Bush, who obtained his first term of presidency
through illegitimate means, is leading the world through force
rather than consensus, and values supremacy more than the
respect of the rest of the world.98
C. America’s Attempts at Rehabilitating Its Image Abroad
“It’s simply astounding that in the United States, the
home of the greatest and most effective democratic
revolution, so many people have come to regard democracy
as a luxury-brand vehicle, suited only for the culturally
upscale, when it’s really a sturdy truck, effective in
conditions both rough and smooth.” – David Brooks99
The United States is in the process of revitalizing its
international image. Of particular note is the State Department’s
October 2001 hiring of Charlotte Beers as the Under Secretary for
Public Diplomacy and Public Affairs, a position established to
promote American values and culture to the Muslim world.100 As
a private sector advertising executive, Beers built her reputation
on her marketing for Uncle Ben’s rice and American Express.101
Secretary of State Colin Powell, who recruited Beers, became
96. James H. Mittleman, Where Have All The Protestors Gone? Critics of
Globalization May Be Less Visible But the Opposition Is, In Fact, Deeper and
More Widespread, COMMON DREAMS NEWS CENTER, Oct. 5, 2004,
http://www.commondreams.org/views04/1005-33.htm.
97. Larry Beinhart, The’War on Terror’Badly Needs a Total Rewrite,
COMMON
DREAMS
NEWS
CENTER,
Oct.
1,
2004,
98. Gary Younge, Divided Against Itself: If Americans Choose Bush Over
Kerry, It Will Be from Fear, a Lack of Choice – and a Preference for Power
Over Safety, COMMON DREAMS NEWS CENTER, Oct. 4, 2004,
99. David Books, The Insurgency Buster, N.Y. TIMES, Sept. 28, 2004, at
A25.
100. Roger Cohen, Democracy as a Brand: Wooing Hearts, European or
Muslim, N.Y. TIMES, Oct. 16, 2004, at B7, B12.
101. Charlotte
Beers,
SOURCE
WATCH,
Apr.
1,
2004,
http://www.disinfopedia.org/wiki.phtml?title=Charlotte_Beers.
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acquainted with her on various corporate boards.102 Before
accepting her appointment, Beers acted as the head of both Ogilvy
& Mather and J. Walter Thompson, large American advertising
agencies.103
With Beers at its helm, the State Department has been
targeting its vast propaganda campaign, entitled “Shared Values,”
at the Islamic world.104 Roger Cohen writes, in his article
Democracy as a Brand, that “[p]ropaganda is central, victory
begins in the mind and the heart is ever vulnerable to
seduction.”105 Under Beers’ supervision, the State Department
indeed attempted to seduce the hearts and minds of Muslims
around the world.
The State Department produced pamphlets, videos, booklets,
and other propaganda.106 This material included an advertising
campaign depicting religious tolerance and Muslims thriving in
the United States, which the State Department intended to air in
Muslim countries.107 One such video was to be played on Muslim
television during Ramadan.108 The video portrayed American
Muslims commending American tolerance and way of life.109
Beers also attempted to “re-brand” the United States as
“elegant” and President Bush and Secretary of State Colin Powell
as “symbols of the brand.”110 To counteract Osama bin Laden’s
videos, Beers recruited Powell, Condoleeza Rice, and former
Syrian Ambassador Chris Ross to Washington’s Al Jazeera studios
102. See Margaret Carlson, Can Charlotte Beers Sell Uncle Sam?, TIME,
Nov.
14,
2001,
http://www.time.com/time/columnist/klein/article/
0,9565,184536,00.html. See also Alexandra Starr, Charlotte Beers’ Toughest
Sell: Can She Market America to Hostile Muslims Abroad?, BUS. WK., Dec. 17,
2001, at 56.
103. Charlotte Beers, supra note 101.
104. Cohen, supra note 100; Shared Values, SOURCE WATCH, Aug. 2, 2003,
http://www.disinfopedia.org/wiki.phtml?title=Shared_Values.
105. Cohen, supra note 100.
106. Id.; President Bush Signs an Executive Order Creating a White House
Office to Improve American’s Image Abroad, ONLINE NEWSHOUR, Jan. 21,
2003,
http://www.pbs.org/newshour/bb/media/jan-june03/diplomacy_121.html.
107. Id.
108. Embassy of the United States of America, Documentaries on
American Muslims Designed to Provoke Dialogue, Jan. 17, 2003,
http://www.usembassyjakarta.org/press_rel/US_Muslims2.html.
109. Cohen, supra note 100; ONLINE NEWSHOUR, supra note 106.
110. Carlson, supra note 102.
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to appear on the television station.111 Beers also coordinated with
the Ad Council to produce a poster to plaster all over Arab
countries about the reward for information leading to the capture
of the Most Wanted terrorists.112
In her job with the State Department, Beers served as
mistress of propaganda and attempted to employ “psychological
warfare” on Muslims, rather than deploying a traditional
advertising soft-sell.113 Beers’ job was thus to attempt to correct
the world view that America is the Great Satan of the Muslim
world.114 However, “[o]n March 3, 2003 Beers unexpectedly
announced her resignation from [her under secretary position for
undisclosed] health reasons.”115
The C.I.A. also engaged in a propaganda campaign of its own
to improve the United States’ image in Iraq.116 The agency
wanted to bring hundreds of small American flags to pre-war Iraq
so that “grateful Iraqis” could wave the flags at “their
liberators.”117 The C.I.A. intended to film the contrived scene and
jubilantly broadcast it to the Arab world.118
In June 2003, after the Pew Research Center for the People
and Press reported that the Middle East still held negative views
of the United States, “the . . .State Department launched an
inquiry into the failure of [the] Shared Values program to polish
America’s image in Muslim countries.”119 The Pew Research
Center’s “Views of a Changing World” report highlights how, in
most countries, opinions of the United States are strikingly lower
than they were previously.120 The war in Iraq widened the rift
between Americans and Western Europeans, further angered the
111. Id.
112. Id.
113. Id. Though Beers’ salary is $133,700, she enjoys an extravagant
lifestyle and associates with Washington elites such as Madeleine Albright
and Jeanne Kirpatrick. Beers is also close friends with Martha Stewart. Id.
114. Id.
115. Charlotte Beers, supra note 101.
116. Maureen Dowd, Op-Ed., Casualties of Faith, N.Y. TIMES, Oct. 21,
2004, at A29.
117. Id.
118. Id.
119. Shared Values, supra note 104.
120. Pew Research Center for the People and the Press, Views of a
Changing World 2003: War With Iraq Further Divides Global Publics, June 3,
2003, http://www.people-press.org/reports/print.php3?PageID=712.
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Muslim world, drastically reduced international support for the
war on terror, and significantly weakened global public support
for the United Nations and the North Atlantic alliance.121 Many
believe the war in Iraq shows that the United Nations is no longer
as important as it once was.122 Further, majorities in five of seven
surveyed NATO countries support less dependence on the United
States regarding diplomatic and security matters.123 The report
therefore conveys a primarily negative picture of the United
States, its people, and its policies in the view of the rest of the
world.124
IV. MINORITY GAINS – FOLLOWING FROM A CONVERGENCE OF
INTERESTS YET AGAIN
“[The University of] Michigan decisions should provide me
with some measure of prophet’s pride. For more than two
decades, I have been writing and teaching that no matter
how much harm blacks were suffering because of racial
hostility and discrimination, we could not obtain
meaningful relief until policymakers perceived that the
relief blacks sought furthered interests or resolved issues
of more primary concern.” – Derrick A. Bell, Jr.125
In order to gain allies and power in its global war against
terror, one method the United States has employed to improve its
destroyed image is making small concessions to various minority
groups. For example, minorities are experiencing small gains in
the areas of civil liberties, affirmative action, economic
opportunities, political appointments, and voting rights.126
During its debate about intelligence reform, the 9/11
commission noted that the United States government lacks a
121. Id.
The United Nations and the North Atlantic alliance are
commonly known as the “pillars of the post-World War II era.” Id.
122. Id.
123. Id.
124. Id.
125. Derrick Bell, Diversity’s Distractions, 103 COLUM. L. REV. 1622, 1624
(2003).
126. The areas discussed in which minorities are benefiting as a result of
interest convergence are not exhaustive, but provide a sample of incremental
gains. Other examples include the recruiting practices of the CIA, FBI, and
Armed Forces. The gains minorities are experiencing should also be
contrasted with losses such as the Patriot Act and racial profiling.
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department whose responsibility it is to safeguard the civil
liberties of Americans.127 The commission recommended, and the
Bush Administration created by executive decree, the President’s
Board on Safeguarding Americans’ Civil Liberties (“the Board” or
“the Bush Board”), a special board to protect civil liberties.128
However, this Board cannot initiate investigations.129 Instead, it
must await requests from Bush Administration cabinet members
for a review of the Board’s actions.130 The Board’s makeup
consists of current administration appointees who frequently
control the operations, such as the C.I.A., which the Board seeks
to review.131 The Board held its first meeting in private and lacks
a mandate to conduct public hearings, subpoena power, a charge
to regularly review laws, or an ability to issue reports to the
public.132 Though the Bush Board is effectively powerless and
extremely partisan, it is a step in the right direction towards
recognizing the necessity of protection for civil liberties. The
Board’s development further demonstrates that interest
convergence theory plays a significant role in today’s political
decisions. It is clear that the civil liberties Board was formed to
benefit minorities and provide a necessary image improvement for
the country as a whole.
In response to the substantial shortcomings of the Bush
Administration’s civil liberties Board, Senators Joseph Lieberman
127. Editorial, In Defense of Civil Liberties, N.Y. TIMES, Sept. 20, 2004, at
A24. The 9/11 Commission suggested that a new agency is necessary to
accomplish what the courts, Congress, and the attorney general are
undertaking. Id. In reality, civil liberties are not high on John Ashcroft’s list
of priorities. Id. Similarly, Congress does not want to appear soft on
terrorism and thus cannot effectively defend civil liberties. Id. The Bush
Administration “has tried to sweep aside the Constitution by declaring
selected American citizens to be unlawful combatants and jailing them
indefinitely; Mr. Ashcroft’s Justice Department produced the appalling memo
justifying the torture of prisoners. It was also responsible for, among other
things, jailing a lawyer from Portland, [Oregon], on charges of international
terrorism based on a misreading of his fingerprints and, apparently, on his
religious beliefs. The administration set up a detention camp in Guantanamo
Bay where minimal standards of justice have been suspended or eliminated
altogether.” Id.
128. Id.
129. Id.
130. Id.
131. Id.
132. Id.
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and John McCain, in a bipartisan effort, submitted a bill that
would form a civil liberties panel of five presidentially appointed
independent non-governmental individuals who would be subject
to Senate approval.133 Optimistically, this proposed panel will
display a bipartisan balance.134 In contrast to the Bush Board, the
McCain-Lieberman panel would be authorized to initiate
investigations, compel federal officials to supply documents and
testify, and deliver subpoenas.135 The panel would hold public
hearings, issue reports to the public, examine proposed legislation,
regulations and policies, and their implementation, hear reports
from government agencies, and report to Congress and the
president twice a year.136 The panel would recommend that
Congress change some of its powers, such as those found in
sections of the Patriot Act, based on whether those powers really
do enhance national security.137 The McCain-Lieberman panel
would also review the extent to which the government is violating
civil liberties and whether these breaches are essential to
America’s security.138 The creation of this alternative panel
indicates that Congress is finding a convergence of interests in the
midst of the war on terror.
Minorities are also experiencing gains in affirmative action.
The 2003 University of Michigan affirmative action cases, Grutter
v. Bollinger and Gratz v. Bollinger, provided gains to minority
students applying to undergraduate institutions and law schools
by justifying affirmative action based on a diversity rationale.139
In a recent article, Bell once again employs his interest
133. Id.
134. Id.
135. Id.
136. Id.
137. Id.
138. Id.
139. See Grutter v. Bollinger, 539 U.S. 306 (2003); Gratz v. Bollinger, 539
U.S. 244 (2003). The Court recently granted a few other token concessions to
minorities. See also Lawrence v. Texas, 539 U.S. 558 (2003) (holding that a
Texas statute criminalizing same sex intimate sexual conduct violates the
Due Process Clause); Virginia v. Black, 538 U.S. 343 (2003) (deciding the
Virginia cross-burning statute unconstitutional on its face because it
discriminates on the basis of content and viewpoint); Smith v. Texas, 543
U.S. 37 (2004) (limiting capital punishment for the mentally handicapped);
United States v. Moussaoui, 382 F.3d 453 (4th Cir. 2004) (upholding the
rights of Middle Eastern people or those accused of being enemy combatants).
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convergence theory and argues that Grutter and Gratz are classic
In their arguments
examples of interest convergence.140
supporting affirmative action, Michigan lawyers, civil rights
groups, “academics, labor unions, scores of Fortune 500
companies, and nearly 30 retired military and civilian defense
officials” focused on the value of diversity to educational
institutions and society generally.141 The Michigan lawyers and
amici curae shifted their arguments in support of affirmative
action away from remedies for past and continuing discrimination
and toward diversity justifications, which are in line with the
majority’s interest.142 The majority is presently encouraging
diversity as a means to achieve greater cultural understanding in
the workplace and armed services.
Therefore, diversity
justifications, which provide the rationale behind the Court’s
continued approval of affirmative action programs, converge with
the majority’s interest.
Religious minorities, such as Sikhs, are also experiencing
economic gains. Akal Security, owned by the Sikh Dharma
community, is one of America’s fastest growing security
companies.143 Sikh Dharma was founded in the early 1970s as a
religious and spiritual retreat where members follow their beliefs
in meditation and community service.144 Akal benefits from $1
billion in government contracts, as a result of the post-9/11
security demands, and is the largest provider of security officers
for federal courthouses in the United States.145 Some criticize the
government’s awarding of such large contract amounts for
security projects such as protecting White Sands Missile Range in
New Mexico to foreigners who would be taking over a “critical
weapons testing site.”146 Senator Jeff Bingaman defended the
140.
141.
142.
143.
Bell, supra note 125, at 1624.
Id. at 1625.
Id. at 1624-25.
Leslie Wayne, Sikh Group Finds Calling in Homeland Security, N.Y.
TIMES, Sept. 28, 2004, at A1, C4. The Sikh Dharma community is
monotheistic and combines New Age principles and orthodox Sikhism, which
originated in the Punjab region of India. Id.
144. Id. at A1. The members say “they are following an ancient Sikh
tradition of the warrior-saint – as well as showing deftness at the more
modern skill of landing federal contracts.” Id.
145. Id.
146. Id. at C4.
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company by stating that Akal is composed of friends to America
who do a good job.147 Because the United States must bolster its
image in the Arab-Muslim world, it is in the majority’s interest to
afford certain economic gains to minority groups in specific cases.
The Bush Administration has been appealing to various
minority groups through its cabinet appointments. In President
Bush’s first administration, the President nominated Condoleeza
Rice and Colin Powell to his cabinet, thus appealing to blacks. In
preparing for his second administration, the president is charming
Latinos by appointing Alberto Gonzalez to the post of attorney
general as successor to hardliner Attorney General John Ashcroft
who resigned.
Both political parties worked hard to attract African
American voters during the 2004 presidential campaign.
President George W. Bush campaigned in black churches and
received support because he backed both a constitutional
amendment banning same-sex marriage and faith-based
initiatives to deliver funding to encourage more religious
organizations to provide social services.148 Senator John Kerry
sought campaign help from former President Bill Clinton, who is
extremely popular in black America, and touted his campaign as
the “continuation of the civil rights movement.”149
Therefore, because America’s image-buttressing strategy is
not progressing particularly well internationally, the United
States grants token concessions to various minority groups and
religions to help strengthen its image elsewhere.150 Countless
examples demonstrate how the United States is finding a
convergence of majority and minority interests and is thus
147. Id.
148. Jim Dwyer & Jodi Wilgoren, Gore and Kerry Unite in Search for
Black Votes, N.Y. TIMES, Oct. 25, 2004, at A1, A17. See generally Lani
Guinier, No Two Seats: The Elusive Quest for Political Equality, 77 VA. L.
REV. 1413 (1991) (describing the interest-convergence dilemma’s relationship
to minority political empowerment). President Bush, however, did not speak
to the NAACP.
149. Dwyer & Wilgoren, supra note 148, at A1.
150. Gains come, as they did in the 1960s, with a kicker. Minorities are
expected to understand that their advances come only if they toe the party
line. For instance, black churches only receive federal funds for “faith based
initiatives” if they agree to accept the Bush Administration’s pro-life, pro-war
stance. Latinos will receive a few token appointments, such as Alberto
Gonzalez, as long as they do not push too hard on immigration issues.
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allowing minority groups to experience small gains.151
V. CONCLUSION – PRESENT-DAY PROSPECT FOR CHANGE
“The battle to reclaim democracy is going to be a difficult
one. It is a battle that must range across continents and
countries. It must not acknowledge national boundaries,
but if it is to succeed, it has to begin [in America]. The
only institution more powerful than the U.S. government
is American civil society. Hundreds of thousands of you
have survived the relentless propaganda you have been
subjected to, and are actively fighting your own
government. In the ultra-patriotic climate that prevails in
the United States, that’s as brave as any Iraqi or Afghan
or Palestinian fighting for his or her homeland. I hate to
disagree with your president: yours is by no means a great
nation. But you could be a great people.” – Arundhati
Roy152
In order to look better in the eyes of the world, the United
States must work to improve its image by granting concessions to
minority groups. Currently, the volatile world situation presents
clear cut opportunities for the dispossessed in the United States to
press for social reform in an effort to bolster its image at home and
abroad. Groups should form coalitions, such as Meren’s,153 to
engage in activism against the majority’s “new colonialism.”154
Perhaps the United States will attempt to buy off Meren’s
coalition and others with token reforms.
151. See Linda Greenhouse, Justices Give Second Hearing in a Texas
Death Row Case, N.Y. TIMES, Dec. 7, 2004, at A20 (discussing the Supreme
Court’s “strong suspicion of racial discrimination” which perhaps violated Mr.
Miller-El’s constitutional rights by excluding black jurors from his murder
trial on the basis of their race); Michael Cooper, New York State Votes to
Reduce Drug Sentences, N.Y. TIMES, Dec. 8, 2004, at A1 (discussing how
state law makers voted to reduce the extreme mandatory prison sentences
given to people convicted of drug crimes in New York state. The mandatory
sentences, or Rockefeller drug laws, disproportionately burden minorities).
152. ROY, supra note 86, at 66-68.
154. Mittleman, supra note 96 (regarding coalitions). See also KRIST
NOVOSELIC, OF GRUNGE AND GOVERNMENT 99 (2004) (discussing an
incorporation of the positive energy and creativity of the World Trade
Organization anti-globalization protests into conventional politics).
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Meren’s coalition and others are left to their own devices to
unite themselves. Coalitions should forge a broad community of
action out of their disappointment, compassion, and wisdom. The
place of progressives is to speak, though often on the margins of
society, about the changes that are necessary to bring about social
justice for the dispossessed.155 The majority will most likely listen
only when it is in their interest to do so.
Hopefully, the time has come for the majority to grant
concessions to domestic minority groups. In a better world, the
government would permit women to have control over their
bodies, by providing unrestricted access to abortion services, birth
control, and sex education. Blacks, Latinos, Native Americans,
people of Middle Eastern descent, Indian Americans, and others
would not have to worry about being the subjects of unjustified
airport searches or racial profiling. The state would not intrude
into people’s sexual preferences and right to marry.
The
separation of church and state and freedom to practice, or to
refrain from practicing, religion would strengthen. In a more
progressive world, moral values, such as poverty, hunger, health
care, and education would serve to unite rather than to divide.
The United States is apt to grant concessions to domestic
minority groups only when it is in the majority’s interest to do so.
In today’s climate, that means that minority groups must actively
take strides to press for changes. If such groups and broader
coalitions challenge the majority’s policies, great gains might be
possible.
155. Members of the legal community should also engage in rebellious
lawyering. See, e.g., Julie A. Su, Making the Invisible Visible: The Garment
Industry’s Dirty Laundry, in CRITICAL RACE THEORY: THE CUTTING EDGE 607,
612 (Richard Delgado & Jean Stefancic eds., 2d ed. 2000); GERALD LOPEZ,
REBELLIOUS LAWYERING (1992).
WOLFSON
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Book Review
The Lessons of Narrative:
A Review of How Lawyers Lose Their
Way: A Profession Fails its Creative
Minds by Jean Stefancic and Richard
Delgado
Arthur M. Wolfson*
I. INTRODUCTION
Narrative has many uses in legal scholarship. It has been
used to show how the perspective of women and minorities is
systemically excluded from the law and legal commentary.1 It has
been used to shed light on the voices behind complicated Supreme
* Law clerk, The Honorable Richard A. Morgan, Office of
Administrative Law Judges, United States Department of Labor. J.D.,
University of Pittsburgh School of Law (2005); B.A., College of William &
Mary (1999). I would like to thank Matthew Mannix and the Editorial Staff
of the Roger Williams University Law Review for their assistance in bringing
this project to completion.
1. See, e.g., Ana Garza, Note, The Voice of Color and Its Value in Legal
Storytelling, 1 TEX. HISP. J.L. & POL’Y 105 (1994).
431
WOLFSON
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Court cases.2 In their new book published by Duke University
Press, How Lawyers Lose Their Way: A Profession Fails its
Creative Minds, Jean Stefancic and Richard Delgado put narrative
theory to another use: to demonstrate and explain the pervasive
unhappiness in the lives of many lawyers.3
As many as twenty percent of lawyers are reported to be
“extremely dissatisfied with their jobs.”4 Forty thousand leave the
profession each year.5 A recent study found that only half of its
respondents would become lawyers, if they had it to do over
again.6 One career counselor who works with young lawyers
reported that “[a]t any given time, at least a third of the people
I’m dealing with would walk out of the law tomorrow if they
could.”7 The rampant dissatisfaction among members of the legal
profession is well documented.8 Thus, the concern Stefancic and
Delgado present is not novel.
Yet it is not Stefancic and Delgado’s call for happier lawyers
that makes this book unique; rather, it is the technique they use
that makes it most meaningful. Stefancic and Delgado have
pioneered the use of narrative in legal scholarship.9 In doing so,
2. See, e.g., Thomas Ross, The Richmond Narratives, 68 TEX. L. REV. 381
(1989).
3. JEAN STEFANCIC & RICHARD DELGADO, HOW LAWYERS LOSE THEIR WAY:
A PROFESSION FAILS ITS CREATIVE MINDS (2005) [hereinafter STEFANCIC &
DELGADO, HOW LAWYERS LOSE THEIR WAY].
4. James M. Cooper, Towards a New Architecture: Creative Problem
Solving and the Evolution of Law, 34 CAL. W. L. REV. 297, 303 (1998).
5. Diana Nelson Jones, Legally Unhappy: Experts Worry About Growing
Tide of Lawyers Abandoning Careers, PITTSBURGH POST-GAZETTE, May 4,
2005 at E-1.
6. Thomas D. Morgan, Creating a Life as a Lawyer, 38 VAL. U. L. REV.
37, 38 (2003).
7. Jones, supra note 5.
8. See STEFANCIC & DELGADO, HOW LAWYERS LOSE THEIR WAY, supra
note 3 (citing WALTER BENNET, THE LAWYER’S MYTH: REVIVING IDEAL FOR THE
LEGAL PROFESSION (2001); DEBORAH L. RHODE, IN THE INTERESTS OF JUSTICE:
REFORMING THE LEGAL PROFESSION (2000); MARY ANN GLENDON, A NATION
UNDER LAWYERS: HOW THE CRISIS IN THE LEGAL PROFESSION IS TRANSFORMING
AMERICAN SOCIETY (1994); ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING
IDEALS OF THE LEGAL PROFESSION (1993)).
9. See, e.g., Richard Delgado, Storytelling for Oppositionists and
Others: A Plea for Narrative, 87 MICH. L. REV. 2411 (1989) [hereinafter
Delgado, Plea for Narrative]; Richard Delgado, On Telling Stories in School:
A Reply to Farber & Sherry, 46 VAND. L. REV. 665 (1993) [hereinafter
Delgado, Reply]; Richard Delgado, Rodrigo’s Final Chronicle: Cultural Power,
the Law Reviews, and the Attack on Narrative Jurisprudence, 68 S. CAL. L.
WOLFSON
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THE LESSONS OF NARRATIVE
433
they have crafted a paradigm by which they challenge prevailing
notions on complex social issues and offer the possibility of future
change.10 While How Lawyers Lose Their Way is not written in
narrative form, it employs the narrative paradigm in discussing
works that are and, accordingly, offers similar lessons about the
condition it considers.
When viewing How Lawyers Lose Their Way through the lens
of the narrative paradigm, the book is divided into two distinct
parts. First, Stefancic and Delgado use the Introduction and first
three chapters to present their primary thesis: that the root of
what plagues the legal profession is a pervasive mode of thought
they call formalism. They present this argument by relying on the
narrative paradigm and discuss specific lessons it produces.
Second, in Chapters four through seven, the authors apply these
lessons to explain the hardships that exist in the lives of many
lawyers. The authors conclude this second part with their own
observations, as well as suggestions aimed at moving toward a
happier legal profession.
This Book Review focuses on Stefancic and Delgado’s use of
the narrative paradigm, the lessons they derive from it, and the
application of those lessons to the lives of lawyers. Part II
outlines the narrative paradigm and demonstrates how Stefancic
and Delgado apply it in How Lawyers Lose Their Way.
Specifically, Part II describes how the authors use the
majoritarian tale and the counterstory, with formalism accounting
for the former and the story of a famous soul-searching lawyer
constituting the latter. Part II also details the specific lessons
derived from the authors’ use of the narrative paradigm. Part III
recounts how Stefancic and Delgado relate these lessons to the
modern day tribulations of many lawyers. Part IV then considers
whether Stefancic and Delgado’s position is overly conceptual,
thus discounting a proper consideration of the economic realities
REV. 545 (1995) [hereinafter Delgado, Rodrigo’s Final Chronicle]; Richard
Delgado & Jean Stefancic, Norms and Narratives: Can Judges Avoid Serious
Moral Error?, 69 TEX. L. REV. 1929 (1991), Richard Delgado & Jean Stefancic,
Imposition, 35 WM. & MARY L. REV. 1025 (1994).
10. I will hereinafter refer to this structural use of narrative as the
“narrative paradigm.” As discussed fully in Part II, infra, the narrative
paradigm consists of two distinct stories - the majoritarian tale and
counterstory - which compete for attention in a given context.
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of legal practice. Part IV ends by illustrating how the lessons
derived from the authors’ use of the narrative paradigm
ultimately prove relevant for these concerns as well. This Review
concludes that the lessons derived from the narrative paradigm
provide hope for a happier and more fulfilling practice of law.
II. THE NARRATIVE PARADIGM:
FORMALISM AND THE POUND-MACLEISH RELATIONSHIP
Stefancic and Delgado have long been leaders in advocating
the use of narrative in law and legal scholarship.11 Their use of
narrative exists as a paradigm of two competing stories: the
majoritarian tale and the counterstory.12 In a given context, each
exists as a story told by a group with a clearly defined set of
experiences and interests.13 Upon repeated telling, the story itself
becomes a constructed reality for the storyteller.14 The competing
story, accordingly, exists as a constructed reality for its storyteller.
When one story is socially adopted over another, the reality it
purports gains acceptance by society at large.
The majoritarian tale is the story told, in any given context,
by the dominant group.15 Because of its dominant position, that
group often views its tale as unqualified truth.16 Accordingly,
these tales often acquire the status of societal norms, conventions,
and understandings that, over time, seem natural.17 Indeed,
because they originate in the majoritarian tale, these norms are
often left unquestioned.18 However, one of the most essential
tenets of the narrative paradigm is that the majoritarian tale is
not truth, but indeed just another competing story.
11. See supra note 9 (citing examples of Delgado’s and Stefancic’s
narrative works).
13. Jane B. Baron, Resistance to Stories, 67 S. CAL. L. REV. 255, 263-64
(1994) (“[S]torytelling relies and builds on background assumptions that are
the products of a (mostly) shared culture. . . . Assumptions and expectations,
whether experiential or ideological in origin, are necessary to organize the
information we receive; they structure thought. Background assumptions
determine, in great measure, whether a particular account will be heard as a
story at all . . . .”).
14. Delgado, Plea for Narrative, supra note 9, at 2416-17.
15. Id. at 2412.
16. Delgado, Rodrigo’s Final Chronicle, supra note 9, at 553.
17. Delgado, Reply, supra note 9, at 666.
18. Delgado, Rodrigo’s Final Chronicle, supra note 9, at 553.
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435
The second part of the narrative paradigm is the counterstory.
The counterstory is a different account of the same set of facts the
majoritarian tale uses. However, it often highlights different
facts, or sequences of facts, and is told with a different tone than
the majoritarian tale.19 These stories are indeed “counter” as they
are told with the purpose of challenging the assumed truth of the
majoritarian tale.20 To that end, the counterstory seeks to jar the
foundation on which the majoritarian tale rests.21 In doing so, the
counterstory serves two purposes: it (1) unmasks the majoritarian
tale as merely a story, and not unqualified truth; and (2) shows
that if the common assumptions of a given context are susceptible
to question, change within that context is possible.22
In legal scholarship, the context in which the narrative
paradigm appears most is race.23 In that setting, the majoritarian
tale generally consists of the stories of white people.24 When these
stories circulate unchallenged, the point of reference for discussing
race in legal scholarship is affixed at the white perspective.25 The
white perspective, accordingly, becomes the presumed truth.26
The counterstory, then, does not so much seek to tell stories from
a perspective of people of color, but rather serves to jar the
presumed truth of the white perspective.27 In doing so, the
counterstory shows that relying solely on the white majoritarian
20. Delgado, Reply, supra note 9, at 671; Richard Delgado & Jean
Stefancic, Hateful Speech, Loving Communities: Why Our Notion of “A Just
Balance” Changes So Slowly, 82 CAL. L. REV. 851, 867 (1994) [hereinafter
Delgado & Stefancic, Hateful Speech].
21. Delgado, Reply, supra note 9, at 671; Delgado & Stefancic, Hateful
Speech, supra note 20, at 867.
22. Baron, supra note 13, at 269; Delgado, Plea for Narrative, supra note
9, at 2314-15.
23. Delgado, Reply, supra note 9, at 670 (“[M]any [Critical Race Theory]
writers employ the ‘counterstory’. . . .”); Nancy L. Cook, Outside the
Tradition: Literature as Legal Scholarship, 63 U. CIN. L. REV. 95, 102 (1994).
24. Cook, supra note 23, at 105.
25. Id. at 106.
26. In their various articles, Delgado and Stefancic describe several
examples of such presumed truths based on the white perspective. See, e.g.,
Delgado & Stefancic, Hateful Speech, supra note 20, at 867 (describing the
prevailing notion of the innocent white male and the idea that racial
discrimination does not exist without intent); Delgado, Rodrigo’s Final
Chronicle, supra note 9, at 552 (describing the idea that the free market will
drive out discrimination).
27. Delgado, Reply, supra note 9, at 670-71.
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tale leaves us with an incomplete understanding of race and the
law. By challenging the assumption that the white perspective is
truth, we are more able to construct our discourse on race upon
fairer and richer premises.28
Race, however, is not the exclusive setting in which the
narrative paradigm may operate.29 Indeed, the paradigm is
relevant to the examination of any situation in which a defined
majoritarian tale has evolved into presumed truth. The
counterstory may then be used to impeach the notion that the
majoritarian “way” is the only “way.”
In doing so, the
counterstory does a great service - it shows that something
different - and likely better - is possible.30
In How Lawyers Lose Their Way, Stefancic and Delgado
expand the use of the narrative paradigm beyond the familiar
context of race to shed light on the lives of lawyers. They define
the majoritarian tale as a life characterized by formalism.
Formalism is a pattern of thought that emphasizes rigid rules and
systems at the expense of creativity. In contrast, the counterstory
- and indeed the centerpiece of the book - is the relationship forged
between Ezra Pound and Archibald MacLeish. That relationship
reveals the life of a lawyer who seeks, and eventually finds,
personal fulfillment in his work despite the obstacles of
professional rigidity he encounters along the way. In presenting
both the majoritarian tale and the counterstory in this fashion,
Stefancic and Delgado fulfill the two purposes of the narrative
paradigm: they show that the accepted condition of formalism is
not inevitable and, concurrently, they offer hope that change
toward a happier and more fulfilled legal profession is indeed
possible.
Though they never describe it in such terms, Stefancic and
Delgado’s account of formalism represents the majoritarian tale in
describing the lives of lawyers.31 Indeed, much like a story told
28. Id. at 671; Delgado, Plea for Narrative, supra note 9, at 2415.
29. See Delgado & Stefancic, Imposition, supra note 9, at 1029 (“Th[e]
‘counterstorytelling’ approach examines majoritarian stories in order to
understand their structure and function, especially in relation to social
justice.”).
30. Baron, supra note 13, at 269.
31. Stefancic and Delgado do, however write that their depiction of
formalism is akin to “a story or narrative.” See STEFANCIC & DELGADO, HOW
LAWYERS LOSE THEIR WAY, supra note 3, at 33.
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437
from the perspective of a dominant group, Stefancic and Delgado
show how formalism characterizes both the thinking and lifestyle
of many lawyers. The condition has become so pervasive that, like
any majoritarian tale, formalism has become accepted as
inevitable in a life in law.
Detailing the concept in both the Introduction and Chapter
three, Stefancic and Delgado define the concept of formalism as “a
habit of a mind and a type of social organization that attempts
perversely to narrow one’s focus beyond that which a situation
requires to render justice to it.”32 Stefancic and Delgado present
several examples of how formalism exists as a pattern of thought
and defines the lives of many lawyers. It begins in law school,
where the curriculum focuses on doctrines and cases at the
expense of interdisciplinary study.33 This translates into a mode
of reasoning driven by inward-looking rules and precedent rather
than social policy and external effect.34 This, in turn, has led to a
practice of law characterized as “disciplined, routinized,
compartmentalized, and result-driven.”35 It has also led to court
decisions focused on rules and principles but devoid of an interest
in the lives they affect.36
These elements of formalism combine to offer lawyers
professional lives of systemic rigidity. Lawyers often lack the
flexibility to use their skills expansively, creatively, or for pursuits
with personal meaning. This rigidity exists systemically as the
profession’s internally created rules and standards exist to
perpetuate its existence. This condition exists as a majoritarian
tale.37 Aspiring lawyers follow a familiar track: they learn to
manipulate cases and doctrines in law school in an attempt to
prove worthy of entrance into a law firm.38 Then, they traverse its
32. Id. at xi. Stefancic and Delgado reformulate this definition elsewhere
in the book. For example, they later describe it as the “regimentation of
thought and reasoning” whose adherents are “satisfied with, [and do] not
even question, narrowly defined views of life and knowledge.” Id.
33. Id. at 35.
34. Id. at 34-35.
35. Id. at 39.
36. Id. at 40. Delgado and Stefancic also catalog how formalism has
played a role in many major twentieth century cases. See id. at 40-44.
37. See id. at 44 (“[F]ormalism remains the dominant self-understanding
of law schools and the practicing bar.”).
38. Id. at 39.
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hierarchical structure in pursuit of a lucrative partnership.39
Consistent with the majoritarian tale, the track towards law firm
success appears as the presumed norm for a life in law, and
attempts to forge a different path are often deemed abnormal and
lesser.40
Sandwiched in between the two accounts of formalism is the
counterstory. Stefancic and Delgado present this part of the
paradigm by recounting the relationship of Ezra Pound and
Archibald MacLeish. Their examination reveals the story of
MacLeish’s rejection of formalism and often turbulent quest for
creativity in his life as a lawyer. In doing so, Stefancic and
Delgado show that formalism need not inevitably define a lawyer’s
life and, concurrently, offer insights for those seeking more
fulfillment from a life in law.
Brief biographies of Pound and MacLeish reveal men who led
very different lives, yet similarly strove to find meaning and
purpose. From his youngest days, Pound’s life centered around
his quest to find and express his literary voice. Born and educated
in the United States, Pound emigrated to Europe in 1908, shortly
after he graduated from college.41 He became a fixture in the
literary circles of London and later Paris, and was known for his
outlandish attire and leadership in the literary community.42 His
poetry was widely acclaimed and he became known as the
“acknowledged architect of modern poetry.”43 His work marked
the transition from ornate and traditional Victorian poetry to
verse characterized by “sharp images [][and] precise words.”44
Against the backdrop of post-World War I Europe, Pound moved
to Italy and became an ardent follower of Mussolini.45 After the
stock market crash of 1929, Pound voiced strong criticism of the
United States in written publications and on radio broadcasts.46
39. Id. at 46.
40. See Jones, supra note 5 (quoting a law school dean who states that
the legal profession “has certain standards and approaches” and a “mentality
that you’re a loser if you don’t go to a big firm”).
41. STEFANCIC & DELGADO, HOW LAWYERS LOSE THEIR WAY, supra note 3,
at 6.
42. Id. at 7.
43. Id.
44. Id.
45. Id. at 8-9.
46. Id. at 9-11.
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439
When Mussolini’s government fell, Pound was arrested and
returned to the United States to stand trial for treason.47 A jury
found him to be of unsound mind and he was committed
indefinitely to the St. Elizabeth’s Hospital for the Criminally
Insane.48 Even during his confinement, however, Pound continued
to publish literature that received wide acclaim.49
MacLeish also found meaning in literary expression.
Whereas Pound’s writing constituted his life’s work, however,
MacLeish turned intermittently to literature in reaction to the
lack of fulfillment he found both in law and his blue-blooded
world.50 MacLeish’s early adulthood followed a track that all but
guaranteed professional achievement, monetary success, and
social standing. He moved effortlessly from Hotchkiss to Yale to
Harvard Law School to a position at a prominent Boston law
firm.51 Yet from the outset, it was a path he traversed with
trepidation. Indeed, as early as his Yale years, MacLeish had
designs on becoming a writer; Stefancic and Delgado note that his
decision to pursue a career in law was a “compromise.”52 Despite
his success as a lawyer, MacLeish found the work to be of little
He
social consequence and the rewards superficial.53
contemplated leaving the law over several years, and eventually
did so to pursue the writing career that continued to beckon.54 He
emigrated to France and joined the literary community of which
Pound was then a member.55 However, he found little lasting
success as a writer; the literary community never fully accepted
MacLeish into its midst, seemingly doubting his authenticity.56
He returned to the United States, finding work first with a
national magazine and then the federal government.57
MacLeish and Pound had known of each other since
MacLeish’s years in France. Indeed, MacLeish greatly admired
47.
48.
49.
50.
51.
52.
53.
54.
55.
56.
57.
Id. at 11.
Id.
Id.
Id. at 13-15.
Id. at 12-14.
Id. at 13.
Id. at 15.
Id.
Id.
Id. at 16.
Id. at 17-21.
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Pound’s writing and, though he actively sought Pound’s approval,
the admiration was not reciprocated.58 Years later, their paths
crossed in a more lasting manner. In 1949, while he was
committed at St. Elizabeth’s, Pound received the prestigious
Bollingen Prize for poetry from the Fellows of American Letters of
the Library of Congress for his Pisan Cantos.59 Because the work
was rife with Pound’s anti-American and pro-fascist beliefs, the
award was wildly controversial.60 MacLeish, who at this point
was teaching rhetoric at Harvard, published a spirited defense of
the award. Though he personally disagreed with Pound’s views,
he defended the value of the work to promote free artistic
expression in a democratic society.61 MacLeish’s defense of Pound
drew the ire of political and academic leaders; yet as Stefancic and
Delgado posit, it “proved a turning point in [his] life.”62
Much later, MacLeish provided an even more valuable service
to Pound when he took up the cause of securing his release. Over
several years, MacLeish gathered the support of literary figures
and government officials.63 Eventually, Pound received a new
hearing and, after ten years of incarceration, was released.64
It is against this backdrop that Stefancic and Delgado offer
the linchpin of the book - their analysis of MacLeish’s motivation
for coming to Pound’s aid. Stefancic and Delgado consider both
MacLeish’s sympathy for a fallen hero and his sense of public
duty; however, at the heart of their analysis is what the writers
call MacLeish’s own “vicarious satisfaction.”65 Indeed, MacLeish’s
efforts on behalf of Pound represented the climax in his ongoing
quest for personal and professional fulfillment in the law.66
MacLeish often questioned the social usefulness of legal
practice; he found most cases to be about little more than
58. Id. at 17.
59. Id. at 23.
60. Id. at 10-11.
61. Id. at 24.
62. Id.
63. Id. at 25.
64. Id. at 26.
65. Id. at 27.
66. Id. Stefancic and Delgado write that, “In rescuing Pound, MacLeish
rescued himself, attaining psychological and personal integration and a sense
of closure.” Id.
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“whether $900,000 belonged this way or that.”67 He also found the
personal rewards of the aforementioned career track to be
unsatisfying, commenting that he was “‘attracted to the law by
considerations the most superficial imaginable.’”68 Now, however,
he was able to base his legal work on passion and experience.
Indeed, it was because of his affinity for Pound’s poetry and the
artistic freedom it represented that MacLeish labored successfully
on his behalf.69 It was through these efforts that, as Stefancic and
Delgado note, MacLeish satisfied “his longings for richness and
texture” in law.70
Here, Stefancic and Delgado present the counterstory.
MacLeish’s rejection of his patterned career track was also a
rejection of formalism. He discarded the dominant mode of
thought and affirmatively sought something else. Though he
found more failure than success in the quest, his eventual work on
behalf of Pound marked the climax in his search for meaning as a
lawyer.
Stefancic and Delgado’s use of the narrative paradigm offers
three important lessons regarding the lives of lawyers. First, it
reveals the pervasiveness of formalism in the legal profession. As
with any majoritarian tale, it operates as the presumed truth in
its given context. In the context of the legal profession, formalism
traps many unhappy lawyers in mundane and unfulfilling
professional lives.
The second lesson, which is somewhat paradoxical, is that of
the counterstory. MacLeish’s ultimate attainment of meaningful
legal work shows that while formalism pervades, it need not
control. Because the constraints of formalism are systemic, the
task of displacing it is indeed challenging; it is possible, however,
for the individual lawyer, like MacLeish, to find a sense of
purpose. In a most poignant line, Stefancic and Delgado sum up
this lesson by writing, “if you allow yourself to think of what you
do in crabbed terms, you are apt to find yourself working in a
Thus, despite seemingly
crabbed workplace as well.”71
67.
68.
69.
70.
71.
A.B.A.
Id. at 15.
Id.
Id. at 27.
Id. at 29.
Id. at 77. See also Steven Keeva, Keeva on Life and Practice, 91
J. 80, 80 (2005) (noting in a review of How Lawyers Lose Their Way
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overwhelming forces, it is up to the individual in the end to accept
formalism or reject it and forge a meaningful life in law.72
The third lesson, consistent with any successful presentation
of the narrative paradigm is that if the majoritarian tale need not
dominate, then change is indeed possible. In this context, because
Stefancic and Delgado have shown that a lawyer’s life of
formalism is not inevitable, there is indeed hope that members of
the profession may find happier lives in the future.
III. APPLICATION TO THE LIVES OF LAWYERS
Stefancic and Delgado apply the lessons from the narrative
paradigm to the lives of lawyers in Chapters four through seven.
They do so in two interconnected parts. First, they describe, in
some detail, the lifestyle that many lawyers lead. This life is all
too often unfulfilled professionally and unhappy personally.
Second, interspersed in this description, is the application of the
narrative lessons. Stefancic and Delgado explain how formalism
is at the root of many of these problems and, accordingly, how the
counterstory of MacLeish proves to be most applicable.
Stefancic and Delgado offer a wealth of information regarding
the unsatisfying life of many lawyers by offering insights into
three of its elements: (1) legal education; (2) professional life; and,
(3) personal life. The common thread that runs through each is a
dominating formalistic pattern of thought.
A lawyer’s discontent, the authors assert in Chapter five,
begins in law school. Even the casual observer can easily notice
the tense environment that exists at many of the nation’s law
schools. The classes are large, the students are competitive, and
student-faculty interaction is at a minimum.73 But Stefancic and
Delgado focus less on the outwardly apparent elements of law
school and more on those developed internally within students.
Students are taught from the outset that law is a system of tightly
crafted rules and standards. Thus the focus of the law student is
to arrive at “an objective ‘right answer.’”74 Law students become
that this particular line, “stopped [him] cold”).
72. See Keeva, supra note 71, at 80 (commenting that the power to find a
personal sense of meaning as a lawyer “lies with the individual”).
73. STEFANCIC & DELGADO, HOW LAWYERS LOSE THEIR WAY, supra note 3,
at 62.
74. Id. at 63.
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443
overly cautious in their thinking and creativity, accordingly, is
discouraged.75 Moreover, law students learn that correctness
comes only through this rigid process. Thus, Stefancic and
Delgado show how the seeds of majoritarian formalism sprout
early in one’s legal career.
This mode of thinking dovetails into a lawyer’s professional
life.
Stefancic and Delgado describe, with disfavor, the
professional lives of lawyers working in top law firms.76 They
point to high billable hour requirements, repetitive work, stress,
Lawyers accept these realities
and inherent competition.77
because the culture of law firm life dictates that they do.78 It is
here that Stefancic and Delgado succeed in showing the practical
application of formalism: the insular patterns that drive how
lawyers think also drive how they work. Moreover, formalism
dominates this context, as many lawyers live this way despite a
desire for something different.79
This pattern of formalism transfers into the personal lives of
many lawyers. Because the billable hour system has become the
norm for many lawyers at work, it drives their personal lives as
well. Stefancic and Delgado give this point primacy, placing it at
the beginning of their discussion of lawyers’ personal lives.80
Consistent with a life driven by billable hours is constant stress
and pressure, factors that account for many of the negative trends
seen within the legal system: deterioration of physical and mental
health, substance abuse, a high divorce rate, depression, and even
suicide.81 Accordingly, Stefancic and Delgado ultimately attribute
these ill effects of legal practice to the forced and patterned
mindset of formalism.
It is counter to this overwhelming dominance of formalism
that the story of MacLeish offers hope. To be sure, Stefancic and
75. Id.
76. Id. at 62-71. The focus of Stefancic and Delgado’s examination of
lawyers’ lives is on those practicing in large law firms. They do, however,
offer a comparison with the lifestyle found in a small law firm, which they
conclude is scarcely different. See id. at 71.
77. See id. at 51-56.
78. Id. at 55.
79. See id. at 60-61 (describing how many lawyers frequently entertain
thoughts of leaving the profession).
80. See id. at 65.
81. See id. at 65-68.
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Delgado neither present MacLeish as a superhero nor his story as
a panacea. He struggled for decades in finding a remedy for his
incessant dissatisfaction with legal practice.
But his story
represents a successful counterstory posited against the
majoritarian tale of formalism for two reasons: (1) MacLeish
refused to accept his unfulfilling life; and, (2) he ultimately found
a purposeful use for his legal skills in his work for Pound.
Therefore, by rejecting the presumed truth of formalism,
MacLeish showed that a life in the law need not be defined by its
constraints. This underscores Stefancic and Delgado’s point that,
despite the pervasiveness of formalism, the individual lawyer may
reject it as a controlling mode of thought. It also furthers the
point that, if formalism can be challenged, change in the legal
profession is possible.
IV. FURTHER APPLICATIONS
Stefancic and Delgado’s call for lawyers to challenge
formalism as their dominant pattern of thought serves a logical
antidote to the ills that plague the legal profession. But is their
argument overly conceptual? That is, while esoteric theory
permeates the law, legal practice is also a bottom-line business.
Law school graduates commonly face nearly insurmountable debt
and must make professional choices to maximize their earning
potential.82 Law firms exist as for-profit enterprises in a highly
competitive market; as such, they must act with sharp business
acumen to succeed. Thus, while How Lawyers Lose Their Way
presents a unique theoretical argument, would its resolution work
in the real world? Indeed, in applying Stefancic and Delgado’s
conclusions to the economic realities of the legal industry, it is
evident that it would.
The concept of formalism extends to the economics of legal
practice. The billable hour approach is one example. In the
second half of the twentieth century, billing hours became the
most popular method for law firms to organize their businesses.83
82. For a detailed account of the debt many law school graduates face,
see Michael A. Olivas, Paying for a Law Degree: Trends in Student Borrowing
and the Ability to Repay Debt, 49 J. LEGAL EDUC. 333 (1999).
83. Susan Saab Fortney, Soul for Sale: An Empirical Study of Associate
Satisfaction, Law Firm Culture, and the Effects of Billable Hour
Requirements, 69 UMKC L. REV. 239, 246 (2000).
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445
The pervasiveness of that approach is self-perpetuating as billing
hours is only most effective when the highest numbers of hours
are billed. Accordingly, in the past few decades, billable hour
requirements of many firms have increased dramatically.84
Moreover, the billable hour requirement is no ancillary
consideration but rather constitutes a dominant characteristic of
legal practice for today’s lawyers.85
Law school debts create a reality that causes many new
lawyers to feel compelled to accept the billable hours standard. In
the latter decade of the twentieth century, it has become common
for graduating law students to be saddled with huge educational
debt.86 Many students take high paying jobs in large law firms to
pay off their debt.87 Thus, the need to find the highest paying job
becomes the primary concern for many law school graduates,
providing another example of formalism in the economics of legal
practice.
These two examples of formalism obviously work in concert.
Pressure on graduates to pay off large law school debt provides
firms with a constant source of eager young lawyers. And because
firms maximize profits by increasing billable hours, they can offer
jobs with exceedingly high salaries.88 Thus, in the economic
formalism of legal practice, debt-ridden young lawyers take highpaying jobs in large law firms and work tirelessly to meet high
billable hour requirements.
This arrangement has been cited as a cause of much of what
plagues the legal profession. Most notably, the drive to bill a
maximum number of hours has resulted in what commentators
call a “time famine.”89 Because more hours can always be billed,
84. Morgan, supra note 6, at 43 (stating that a 1400-1500 billable hour
requirement was common thirty years ago but now such requirements
frequently exceed 2000).
85. Id. (referring to the billable hours approach as the “greatest source of
dissatisfaction among modern lawyers”) (emphasis added).
86. Susan D. Carle, Re-valuing Lawyering for Middle-Income Clients, 70
FORDHAM L. REV. 719, 738 n.67 (2001) (“[B]etween 1987 and 1997 alone, the
cost of law school tuitions more than doubled. . . . [T]he median amount of
total loans for law students in the class of 1998 was almost $70,000 . . . .”).
87. Martin E. P. Seligman, Paul R. Verkuil & Terry H. Kang, Why
Lawyers are Unhappy, 23 CARDOZO L. REV. 33, 44 n.55 (2001) (stating that
young lawyers leave law firms “when their loans are [re]paid”).
88. Fortney, supra note 83, at 248-49.
89. Id. at 263-67.
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many lawyers work with the constant belief that they must bill
more. As one young associate stated, “‘No matter what I did, I felt
like I should be in the office doing work, not doing specific client
work, but racking up hours.’”90 As a result, lawyers have less
personal time and are never satisfied with the work they have
completed.91 This economic arrangement has also been cited as
responsible for a decrease in work quality and lapses in
professional ethics.92 Finally, high billable hour requirements for
young associates have been blamed for a high level of turnover, a
business cost many firms incur.93
But does it have to be this way? Are the circumstances of law
school graduates so predetermined that they must sell their
services to the highest bidder, no matter the personal or
professional costs? And is maximizing billable hours the only way
firms can operate as a business? Indeed, just as Stefancic and
Delgado argue that formalist thinking need not exist as
unqualified truth, such economic formalism need not be the
dominant arrangement for the legal industry either.
First, while law school debt is very real for many graduates,
at least one commentator has stated that the financial necessity of
taking a big firm job is more perception than reality.94 Moreover,
alternate, and often untapped, markets exist for graduates to
make a lucrative living. Susan Carle makes a compelling case for
law school graduates to consider careers that serve middle income
clients.95 She notes that the market for lawyers representing such
clients is stable enough to afford a young lawyer a living.96 Yet it
is still underserved such that it also affords opportunity.97
90. Id. at 263.
91. Id. at 267.
92. Id. at 273, 278.
93. Id. at 283-84.
94. Id. at 287 (quoting a professor who states that, “‘the number of
students whose economic circumstances compel them to take big firm jobs is
still substantially smaller then the number of students who claim that their
economic circumstances compel them to take big firm jobs’”).
95. See generally Carle, supra note 86.
96. See id. at 722 (stating that the percentage of lawyers who earn their
living as solo practitioners or in small firms, which typically serve middleincome clients, is 74 percent, up from 68 percent in 1980).
97. See id. at 723-24 (quoting a recent study finding that “nearly two
thirds of legal needs of moderate-income households were not taken into the
civil justice system in 1992”).
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447
Furthermore, Carle argues that too few law school graduates
consider jobs in this sector when, in reality, many jobs are there to
be had.98 Thus, by allowing themselves to consider a wider array
of career options, young lawyers need not feel trapped by the
dominant economic arrangement the legal profession presents.99
Additionally, law firms beholden to the billable hours
approach may also be forgoing opportunities for more effective
business practices. As noted, many blame strict adherence to
billable hour requirements for unhappy lawyers, substandard,
even unethical work, and high lawyer turnover. Currently, law
firm leaders give billable hours unquestioned primacy and choose
to spend less time on the personal and professional development of
their young associates. One commentator argues that treating
hours spent mentoring and training young associates with the
same importance as billable hours may improve work and
decrease attrition.100 Stressing mentorship represents a deviation
from the dominant billable hours arrangement, but may be more
economically beneficial.
Others suggest that lawyers would be more fulfilled if firms
tailored work to a lawyer’s strengths and interests. Firms could
make a concerted effort to identify their associates’ strengths and
distribute assignments accordingly.101 Doing so would promote a
sense of ownership over the work, which, in turn, would increase
morale and stabilize the associate work force. Providing alternate
work schedules for lawyers with varied career objectives would
also personalize the law firm experience. Indeed, one study found
that many associates would be willing to exchange compensation
and advancement opportunities for having to work fewer hours.102
Providing such options, which also are contrary to the dominant
economic arrangement, may also prove beneficial to the legal
industry.
Therefore, the lessons Stefancic and Delgado offer regarding
the dominant mode of thought exhibited by many lawyers also
apply to the dominant economic arrangement of the industry.
98. See id. at 739.
99. For a discussion of the importance of client choice in a young lawyer’s
career, see Morgan, supra note 6, at 52-54.
100. Fortney, supra note 83, at 293-94.
101. Seligman, Verkuil, & Kang, supra note 87, at 45.
102. Fortney, supra note 83, at 294.
WOLFSON
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Specifically, Stefancic and Delgado identify formalism as the
majoritarian way that lawyers think, and illustrate how a wellreasoned counterstory undermines its presumed truth. In doing
so, they persuade that formalism need not pervade lawyers’
thinking. Similarly, the economic arrangement in which law
firms seek to maximize billable hours and new lawyers seek jobs
similarly focused on this goal exists as the dominant economic
arrangement for legal practice.
But, as demonstrated, the
dominance of this arrangement need not persist, especially when
it has been linked to so many negative effects on lawyers. Most
notable in this comparison, however, is that the same
argumentative approach Stefancic and Delgado employ to attack
formalist thought makes the same point when applied to the
economics of legal practice. Thus, while it appears that their
reliance on the narrative paradigm is a potential weakness
because of its narrow focus on formalist thought, such reliance is
indeed a strength when application of the narrative paradigm to
other contexts proves to be relevant as well.
V. CONCLUSION
In How Lawyers Lose Their Way: A Profession Fails its
Creative Minds, Jean Stefancic and Richard Delgado address a
well-documented problem in a unique way.
As they have
previously done in other contexts, they employ the narrative
paradigm to impeach the presumed truth of a majoritarian tale
with a well-reasoned counterstory. By clearly defining and
explaining formalism, they identify how, as a pattern of thought,
it exists as a majoritarian tale. Then, by presenting the unique
story of Ezra Pound and Archibald MacLeish, they offer a
counterstory that impeaches formalism’s majoritarian control of
the life of a lawyer. In doing so, they show how formalism is at
the heart of what plagues the legal profession and how difficult it
is to challenge. But they also show that formalism need not exist
inevitably, thereby providing hope for a happier, more fulfilled
legal profession. Moreover, when applied not only to legal
thought, but also to legal economics, lessons of the narrative
paradigm prove similarly relevant in improving the legal
profession. This further application strengthens the point that,
while much plagues the legal profession, a brighter future is
indeed possible.
ZLOTNICK
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Symposium
Symposium on Sentencing Rhetoric:
Competing Narratives in the PostBooker Era
October 22, 2005
David M. Zlotnick*
FOREWORD
On January 12, 2005, the Supreme Court held that the
United States Sentencing Guidelines were unconstitutional as
mandatory rules, unsettling a sentencing regime that had been in
place since 1987.1 While the first order of business for the
criminal justice system has been to implement the Court-created
advisory Guidelines regime, almost immediately the debate began
* Associate Professor of Law, Roger Williams University School of Law,
J.D. Harvard Law School, 1986. Many are due thanks for making this
volume and the symposium happen. First and foremost, however, is Dean
David Logan who asked me to undertake the project, and as importantly,
provided the funding. Chelsie Horne, C.M.P. ran a flawless event and the
editors of the law review handled the authors with care. I also deeply
appreciate the willingness of my sentencing comrades in academia, the
bench, government, private practice, and the public interest community for
taking time from their busy lives to participate in this event. With regard to
my substantive contributions to the volume and the symposium panels, the
dedicated research and editing efforts of Christine List are much appreciated.
1. United States v. Booker, 125 S. Ct. 738, 756 (2005).
449
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over whether and how to replace the awkward and ill-defined
sentencing process created by Booker’s remedial majority opinion.2
Given the import of the decision, there have already been
numerous conferences about Booker and its aftermath. Rather
than repeat these efforts, this symposium attempted to use the
lens of rhetorical analysis and narrative scholarship to offer a
different perspective on the future of sentencing policy in the postBooker era.
Before commenting on the symposium and the articles within,
a brief introduction to the concept of sentencing rhetoric seems
appropriate. I see sentencing rhetoric as a broad umbrella for the
discourse within the criminal justice system and the legislative
process about how punishment is determined and imposed for
criminal offenses.
In the courtroom, sentencing rhetoric
encompasses the competing narratives of defendants, defense
lawyers, prosecutors, victims, and probation officers, as well as the
comments of the judge when pronouncing sentence. At the macrolevel, these individual stories are spun and aggregated with the
explicit intent of influencing policy decisions, as well as refracted
by federalism issues and by the power struggle between the
political parties and among the judiciary, executive and legislative
branches.
Before Booker there was little expectation of any major shift
in the dominant sentencing paradigm and hence sentencing
rhetoric had grown formulaic and stifled at all levels of discourse.
Sentencings in the federal system had become mind-numbing
exercises in the arcanity of the Guidelines in which the defendant,
his crime, and any obvious connection to the purposes of criminal
sanctions had long disappeared. Legislative debate was comprised
of not much more than a rear-guard action against continued
conservative initiatives to eliminate the last vestiges of judicial
discretion. However, with mandatory guidelines now eliminated
as an option, all interested parties recognize the post-Booker world
as a moment of both significant opportunity and substantial risks.
2. I say awkward and ill-defined because, under Booker, a district court
judge must still compute the Guidelines range and then superimpose the
additional consideration of § 3553(a) on to their sentencing decision, yet
without clear instructions from the Court about how to weigh the Guidelines
against the statutory factors (other than the overarching standard of
“reasonableness.” Booker, 125 S. Ct. at 767.
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SYMPOSIUM ON SENTENCING RHETORIC
451
In response, politicians and prosecutors, courts and
commentators, attorneys and activists have advanced with
renewed vigor, a wealth of conflicting narratives, some intended to
influence individual sentences, and others crafted to shape the
future of sentencing policy.
For example, although in Booker the Supreme Court used the
formalism of constitutional discourse to invalidate the Sentencing
Guidelines, suspicious legislators saw the culmination of a longsimmering rebellion by the judiciary against congressional limits
on sentencing discretion.3 Thus, legislators have amplified their
longstanding rhetoric that judges are the sole obstacle to a
uniform and appropriately punitive sentencing regime.4 Federal
prosecutors have chimed in with their theme that Booker has
reduced the leverage necessary to induce cooperation from
defendants and thereby endangered their ability to prosecute
violent and secretive criminal organizations.5
3. Rep. Thomas Feeney (R-FL) stated the decision was an “egregious
overreach into Congress’s constitutional power . . . that place[ed]
extraordinary power to sentence a person solely in the hands of a single
federal judge - who is accountable to no one [and therefore] flies in the face of
the clear will of Congress.” Press Release, United States House of
Representatives, Feeney Comments on Supreme Court Sentencing Ruling.
(Jan. 12, 2005) (available at http://www.house.gov/apps/list/press/fl24_
feeney/SupremeCourtOpinion.html); See also Noelle Tsiqounis Valentine, An
Exploration of the Feeney Amendment: The Legislation that Prompted the
Supreme Court to Undo Twenty Years of Sentencing Reform, 55 SYRACUSE L.
REV. 619, 621 (2005) (discussing the Feeney Amendment’s substantial limits
on judicial discretion and its influence on the Court’s decision in Booker).
4. “Mandatory minimum penalties are effective for ensuring consistency
in sentencing. Since the Supreme Court’s decision in United States v.
Booker, judges now have virtually unlimited discretion to ignore the Federal
sentencing guidelines and impose whatever sentence they like, all to the
detriment of public safety and fairness and sentencing through consistent
and clear punishment schemes. Judges are now completely unaccountable.”
151 CONG. REC. H10090-02, H10100 (Nov. 9, 2005) (statement of Rep. James
Sensenbrenner). See also Federal Sentencing After Booker, Hearing Before the
Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on
the Judiciary, 109th Cong. 14 (Feb. 10, 2005) (written testimony of
Christopher A. Wray, Assistant Attorney General) (describing sentences
administered below the applicable guideline range based on factors
previously prohibited from consideration).
5. See, e.g., id. at 16 (“This will have grave effects on the Department’s
ability to prosecute a wide variety of crimes . . . such as drug trafficking,
gangs, corporate fraud and terrorism offenses.”); Bloomberg, U.S. Sentencing
Guidelines Made Advisory by Court, THE NOVEMBER COALITION (Jan. 12,
ZLOTNICK
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At the opposite end, defense attorneys are using the space
created by Booker to resuscitate traditional sentencing allocution,
calling with renewed vigor for compassion for individual
defendants and telling stories of addictions and broken childhoods,
Academic discourse
and of remorse and rehabilitation.6
constitutes yet another layer, which typically has invoked Booker
to widen the lens, arguing that the Court-created turmoil creates
momentum for a fundamental reconsideration of sentencing
policy.7 Their reports and articles urge Congress to go back to the
drawing board, claiming that the regime of the last twenty-five
years has failed to achieve the goals of sentencing reform, pointing
to the increasing racial disparity in the nation’s prisons, a
seemingly irreversible upward ratcheting of sentences, and other
deep flaws in the Sentencing Guidelines.8
To reflect on the varied rhetorical reactions to Booker, this
symposium brought together federal judges, prosecutors, defense
attorneys, congressional staffers, public interest advocates, and
academics. The result was an interesting day of conversation, and
at times, spirited debate. Panelists examined sentencing rhetoric
2005) (“It probably will create additional leverage for defense counsel in
negotiating agreements.”) (quoting Minnesota U.S. Attorney Todd Jones).
6. See David L. McColgin, Grid & Bear It, 29 CHAMPION 50, at 51 (Nov.
2005) (discussing the need for defense counsel “to conduct a detailed
investigation of the client’s life, covering social, family and medical history as
well as educational and work background” since courts are now permitted to
consider a number of factors which were disallowed under the guidelines).
See also Alan Ellis & James H. Feldman, Jr., Representing White Collar
Clients in a Post-Booker World, 29 CHAMPION 12, at 14 (Sept.-Oct. 2005)
(discussing the need to emphasize rehabilitation and the inadequacy of
imprisonment to serve that purpose).
7. See, e.g., Rachel E. Barkow, Our Federal System of Sentencing, 58
STAN. L. REV. 119, 119 (2005) (highlighting the federalism concerns in
sentencing policy that must be reconsidered); Frank O. Bowman, III, Murder,
Meth, Mammon, and Moral Values: The Political Landscape of American
Sentencing Reform, 44 WASHBURN L.J. 495, 495-96, 515 (2005) (discussing the
moral values which must be considered in forming a new sentencing system).
8. See Frank O. Bowman, III, The Failure of the Federal Sentencing
Guidelines: A Structural Analysis, 105 COLUM. L. REV. 1315, 1315-16 (2005)
(addressing the problems of excessive prosecutorial power, the complexity of
the guideline table, the upward ratcheting of sentences, and the severe
constraint on judicial discretion); William J. Stuntz, The Political
Constitution of Criminal Justice, 119 HARV. L. REV. 780, 839-40 (2005)
(highlighting the four major problems of sentencing: severity, racial disparity,
lack of uniformity, and increasing prosecutorial power).
ZLOTNICK
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453
at different levels of abstraction and critically examined (and
cross-examined each other on) the influence of partisanship. There
were also important discussions about what has been omitted
from the discourse, especially the silence and denial that has
greeted charges that racial and gender bias are responsible for the
dramatic increases in the incarceration of minorities and women
under the combined mandatory minimum and Guidelines regime.
We also talked a good deal about judicial sentencing rhetoric,
especially about what judges say at sentencings, and debated the
merits of a recent opinion by Eleventh Circuit Judge Gerald
Tjoflat, in which he chastised district court judges for criticizing
the Guidelines from the bench as they pronounced sentence.9 This
discussion went to the heart of the role of a judge in a democratic
society and how judges could appropriately express their personal
views about the fairness of the laws they have sworn to
implement.
In addition to the presentation of papers, the symposium
utilized smaller breakout sessions to encourage free-flowing
discussion, including one panel dedicated to Rhode Island federal
practice. This panel featured all three active local federal judges,
the U.S. Attorney for the District of Rhode Island and the local
Federal Public Defender. Here, much of the discussion focused on
whether Booker permits judges to sentence below the Guidelines
in crack cocaine cases. One member of the panel, Judge William
Smith (D. RI), is the author of the widely admired Perry10 decision,
which set forth a comprehensive foundation for rejecting the
Guidelines’ treatment of crack offenses.11
9. United States v. Thompson, 422 F.3d 1285, 1303-04 (11th Cir. 2005)
(Tjoflat, J. concurring). Judge Tjoflat argues that such criticism from the
bench may make defendants (1) less likely to accept punishment and enter
prison in a frame of mind conducive to rehabilitation, and (2) encourage them
“to persist in attacking [their] sentence on direct and collateral review.” Id.
In addition, Judge Tjoflat claimed that “[B]y openly disparaging the
defendant’s sentence, the judge fosters disrespect for the rule of law.” Id. at
1304.
10. 389 F. Supp. 2d 278 (D.R.I. 2005).
11. During this panel, each of the three judges indicated that they
believed that something less than the 100:1 ratio could be appropriate for
crack sentences. However, in light of the First Circuit’s reversal of Judge
Torres’s 20:1 ratio in United States v. Pho, the future of non-Guideline-based
crack sentencing in Rhode Island District Court seems substantially less
likely. 433 F. 3d 53 (1st Cir. 2006).
ZLOTNICK
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And, of course, the symposium resulted in contributions from
many of the participants to this volume of the Roger Williams Law
Review. The selections begin with Professor Ron Wright’s essay,
which provides a framework for understanding the post-Booker
rhetorical world.12 He first shows that post-Booker sentencing
rhetoric can be understood as existing along a continuum from
incrementalists, who argue that nothing much has changed, to
those with more incendiary claims that Booker has created chaos
and/or a return to the intolerable disparity and lenient sentences
of the past. Second, Professor Wright claims that institutional
allegiance is highly predictive in the post-Booker environment,
with sentencing commissions most reflecting the incremental
approach, and prosecutors and conservative legislators leading the
“parade of horribles” contingent.13 Third, Professor Wright posits
that each group’s rhetorical choices have been consciously
influenced by their views about the possible legislative reaction to
Booker. Judges and sentencing commissioners are most afraid of
awakening the sleeping legislative dragon, which might respond
with even more rigid sentencing policies, whereas conservatives,
outraged over the Court’s usurpation of their hard-won
restrictions on sentencing discretion, seek to stir Congressional
action.
Political Science Professor Naomi Murakawa contributes a
provocative article that makes a case for the racialized
She traces the
development of the Sentencing Guidelines.14
recent conflict between Congress and the courts over sentencing
discretion back to the federal courts’ role in the breakdown of Jim
Crow and racial segregation in the mid-20th Century. She argues
that, while explicit claims about the need for racial order have
given way to coded arguments about rising crime rates and the
need for uniformity, conservative criticism of the Supreme Court’s
decisions has sounded consistent themes from Brown v. Board of
12. Ronald Wright, Incremental and Incendiary Rhetoric in Sentencing
After Blakely and Booker, 11 ROGER WILLIAMS U. L. REV. 461 (2006).
13. Wright notes that the rhetoric of judges is more varied given the
different political backgrounds of the bench but that judges, especially the
official organs of the judiciary, are closer to the “wait and see” perspective of
the incrementalists. Id. at 468-69.
14. Naomi Murakawa, The Racial Antecedents to Federal Sentencing
Guidelines: How Congress Judged the Judges from Brown to Booker, 11
ROGER WILLIAMS U. L. REV. 473 (2006).
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455
Education through Booker. The claims are that federal judges are
liberal, elitist, and out of touch with the needs of local
communities and that they risk the destruction of the social order
by treating minorities with too much leniency. Because of the
Warren Court’s reputation for liberalism in areas of black civil
rights, criminal defense, and prisoners’ rights, these claims
continue to resonate with voters whether the issue is education or
crime.
In laying out this political and darker vision, Professor
Murakawa also undermines the narrative of sentencing reform
that holds sway over the legal academic literature, which she calls
In the
the revolution sparked by disrupted ideals.15
legal/scholarly narrative, research from experts and judges was
the major catalyst for the massive shift from the rehabilitative
ideal to punishment and the elimination of sentencing disparities.
Murakawa notes, however, that political science research does not
support this narrative because the motivations for Congressional
action generally involve a far messier and more political process.
She makes a convincing case that, generally, it is pressure from
outside a stable and insular system, such as the indeterminate
sentencing regime that had dominated since the mid-nineteenth
century, that provokes sudden and radical changes like the
Sentencing Reform Act (SRA). Thus, while legal academics prefer
to cite the rational and racial justice reasons Senator Kennedy
invoked for sentencing reform, it was the critical support of
conservative Senators such as McClellan and Thurmond that
resulted in the SRA. In support of her thesis, she provides
examples of chillingly similar rhetoric that these Southern
conservatives used to attack civil rights legislation and the Brown
decision, alongside their more recent critiques of the sentencing
practices of federal judges.
Professor Ian Weinstein’s article also offers a historical
perspective. He takes a fresh look at the issue of regional
disparity through the lens of historical narrative.
Despite
repeated efforts of Congress and the Commission to enforce
national uniformity, significant regional variations in sentencing
practices remain.16 Building on the work of historian David
15.
16.
Id. at 476-80.
See Ian Weinstein, The Historical Roots of Regional Sentencing
ZLOTNICK
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Hackett Fisher, Professor Weinstein suggests that these
entrenched regional sentencing practices reflect powerful folkways
that accompanied different waves of European immigration.
These folkways, he argues, are still embedded in the general and
legal cultures of different regions of the nation, where these
different groups of settlers first put down roots. His recognition of
the continuing resonance of the immigration narrative in
American culture poses a substantial challenge to Congressional
assertions in the SRA and the Feeney Amendment that the
federal criminal justice system can and should encompass a single
set of values and practices. As Professor Weinstein writes, “[t]he
great American experiment in combining diverse groups has
always been characterized by the pull of great unifying moments
and the push of compromises that permit sectional, and other,
differences to coexist in our federal structure.”17 Therefore, he also
argues that Booker can be seen as an effort to re-balance the
power of regional and national visions for our criminal law.18 Not
only is Professor Weinstein’s counter-story to the conservative’s
narrative of uniformity compelling, it also has far reaching policy
implications. The persistence of regional folkway values about
crime highlights the role that Congress’s federalization of minor
drug and gun offenses has played in generating dissatisfaction at
the local level, and belies conservative claims that they are the
defenders of federalism and states’ rights.
Stephanie Weinstein and Arthur Wolfson also contribute a
narrative scholarship article that builds on the work of their
mentors, Professors Richard Delgado and Jean Stefancic.19 After
positing that the generic narrative structure of a criminal case
involves the competing stories of defendant, victim, and
prosecutor, Weinstein and Wolfson explore each of these
narratives in a highly charged case involving a star AfricanAmerican high school student convicted of sex offenses involving a
white, female co-student.
After considering each of the
participant’s stories, Weinstein and Wolfson suggest that judges
Variation, 11 ROGER WILLIAMS U. L. REV. 495 (2006).
17. Id. at 508.
18. Id. at 509.
19. Stephanie Weinstein & Arthur Wolfson, Toward a Due Process of
Narrative: Before You Lock My Love Away, Please Let Me Testify, 11 ROGER
WILLIAMS U. L. REV. 511 (2006).
ZLOTNICK
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457
at sentencing should consider aspects of the counterstories of the
defendant and victim that may not have been credited in the all or
nothing context of a trial. Without proposing a formula, they offer
their narrative theory, which they call the due process of
narrative, as a tool by which judges might endeavor to synthesize
and harmonize the competing stories in a criminal case. Their
due process of narrative, with its explicit intent of inclusiveness,
stands in stark contrast to the singularity of the punitive
approach embedded in the Guidelines regime. While these
authors do not suggest that their narrative framework is likely to
be actualized any time soon, their imagination reveals that,
nevertheless, there are theoretical approaches to sentencing that
could transcend the stale dichotomies of rehabilitation-versuspunishment
and
discretion-versus-uniformity
that
have
characterized sentencing discourse for too long.
In addition to these articles, which examine the broadest
narratives of sentencing rhetoric, the symposium also sought to
give equal time to sentencing rhetoric at the individual case and
actor level. Two articles in this volume are dedicated to more
singular perspectives. Judge Lynn Adelman and Jon Deitrich
write about fulfilling Booker’s promise. Judge Adelman, one of the
clearest and most courageous judicial voices in the post-Booker
world, does not hide his happiness over the turn of events or
minimize their significance, writing that “[a]fter Booker, judges
need no longer impose sentences that they do not believe in.
Booker restored a meaningful role to judges at sentencing and
enables them to craft sentences appropriate to circumstances of a
case.”20 Yet, Judge Adelman is still a typical post-Guidelines
judge. He does not seek the unfettered discretion of an earlier era.
For him, the Guidelines provide an objective marker against
which to measure a sentence,21 and therefore provide a useful
service.
Judge Adelman also welcomes how Booker has returned
meaningful rhetoric to the courtroom. Instead of unintelligible
language about the applicability of particular Guideline
provisions, Booker directs courts to consider and speak about
20. Lynn Adelman & Jon Deitrich, Fulfilling Booker’s Promise, 11 ROGER
WILLIAMS U. L. REV. 521, 521 (2006).
21. Id. at 525-28.
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4/19/2006 10:49 PM
traditional sentencing factors such as the circumstances of the
case, the character of the defendant and the need for the sentence
to reflect the seriousness of the offense and to protect the public.
However, to fulfill Booker’s promise, Judge Adelman argues that
litigants must reinvigorate their sentencing rhetoric, and the body
of his article provides a primer and a bevy of possible avenues.22
For example, Judge Adelman explains that while the Guidelines,
through the criminal history axis, focused attention on only the
bad things about the defendant’s character,23 § 3553(a)’s
instruction to consider the history and characteristics of the
defendant now allow judges to fully consider a person’s positive
character traits so that courts may treat defendants as whole
people.24 Judge Adelman concludes with an admonition that we
should not worship the false idol of uniformity, but rather, focus
on doing justice in individual cases.25 No turn of phrase could
better capture the core theme of the judiciary in this debate.
Professor Eva Nilsen chose to examine the facts and legal
arguments in the Weldon Angelos case.26 After much anguish,
Judge Paul Cassell (D. UT) sentenced Angelos, a first-time
offender, to fifty-five years in prison for three small marijuana
deals in which he allegedly possessed (but did not use) a handgun.
While Booker provided Judge Cassell the opportunity to avoid
giving Angelos an even longer sentence, the prosecutor’s decision
to charge multiple gun counts that carry consecutive and
mandatory terms left this judge with no ability to go below the
fifty-five years. The fact that Judge Cassell is a well-known
conservative voice, both as a judge and law professor, garnered his
outrage at the severity of this sentence national attention.
Professor Nilsen’s contribution is to recognize there are other
avenues for constitutional rhetoric to combat the harsh sentencing
laws of the modern era besides the Sixth Amendment line of cases
22. As part of his structural blueprint, Judge Adelman repeats his
contention from United States v. Ranum that the Guidelines are not entitled
to presumptive weight under Booker and that, in fact, such a position violates
Booker’s Sixth Amendment rationale. 353 F. Supp. 2d 984, 986-87 (E.D.
Wisc. 2005). See generally Adelman & Deitrich, supra note 20, at 19.
23. Id. at 528.
24. Id.
25. Id. at 535.
26. Eva S. Nilsen, Indecent Standards: The Case of U.S. versus Weldon
Angelos, 11 ROGER WILLIAMS U. L. REV. 537 (2006).
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459
that bore fruit in Booker. Using Angelos as a starting point, she
argues for reinvigorated rhetoric of cruel and unusual punishment
under the Eighth Amendment. She amasses evidence from both
this case, and more generally, that the tide of public opinion has
turned against extraordinarily long prison sentences for nonviolent crimes. For example, she cites legislation in more than a
dozen states scaling back mandatory minimum sentences, as well
as the amicus brief in Angelos signed by 163 former federal
prosecutors and judges.
As a rhetorical strategy, Nilsen’s focus on the Eighth
Amendment’s basic concept of cruel and unusual punishment, and
the case law’s evocation of evolving standards of decency, has
great promise.
Certainly, these rhetorical hooks are more
understandable and appealing than the obscure and seemingly
contradictory holding in Booker, which increased judicial power
under a constitutional provision designed to secure the right to a
jury. Nilsen’s article is a reminder to lawyers that strategies that
failed in the past may bear fruit as political and social conditions
change. After all, few scholars before 2000 foresaw Apprendi,
Blakely, and Booker. As Barry Friedman’s scholarship makes
clear, our democracy has a rhetorical component that exists
alongside the formal electoral system and separation of powers
structure.27 Thus, policymaking can be understood as a complex
and ongoing conversation among and between the branches of
government and the people. Under this framework, Angelos could
conceivably be the first marker of a new front in the battle over
criminal punishment between the Court and Congress.
Finally, in an effort to provide examples of sentencing rhetoric
in their most protean form, and to provide access to the otherwise
unavailable raw materials, this volume includes transcripts from
post-Booker sentencing before Rhode Island judges Ernest Torres
and Mary Lisi.28
27. See Barry Friedman, Dialogue and Judicial Review, 91 MICH. L. REV.
577, 580-81 (1993).
28. Judge Torres’s contribution is from the post-Booker resentencing of
former Providence mayor, Buddy Cianci, who was convicted of RICO
conspiracy in a case that fixated the region for months. Ultimately, Judge
Torres decided that the Guideline sentence he originally imposed was also a
reasonable sentence under Booker, holding that none of the § 3553(a) factors
mandated a different sentence. Resentencing Hearing Transcript, United
States v. Cianci, No. 00-83T (D.R.I. 2005), 11 ROGER WILLIAMS U. L. REV. 565
ZLOTNICK
4/19/2006 10:49 PM
In conclusion, although perhaps many in the sentencing arena
are still largely repeating their lines from the Guidelines era,
there is no question that Booker has at least provided an opening
for new and more creative sentencing rhetoric. If this symposium
has made a positive contribution to that process, it has been by
helping to sensitize the participants, and now readers of these
articles, to the narrative structure of sentencing discourse and to
the rhetorical choices by various actors in the system. Whether
this clarity and insight will move the sleeping dragon to more
rational policy choices when it wakes, only time will tell.
My many thanks again to the symposium participants and
authors, the Roger Williams University Law School and Law
Review editors for their assistance and funding.
(2006). In Judge Lisi’s two cases, however, her evaluation of the § 3553(a)
factors resulted in sentences below the Guideline ranges. Specifically, she
was able to consider factors such as the nonviolent nature of the crime, the
defendant’s troubled past, and efforts to obtain further education, which
probably would not have been grounds for a downward departure under the
Guidelines. Sentencing Hearing Transcript, United States v. Vasconcelos, No.
04-081ML (D.R.I. 2005), 11 ROGER WILLIAMS L. REV. 579 (2006) (Judge Mary
Lisi presiding); Reconsideration and Correction of Sentence Hearing
Transcript, United States v. Luna, No. 03-111ML (D.R.I. 2005) (Judge Mary
Lisi presiding), 11 ROGER WILLIAMS L. REV. 589 (2006). Judge Torres’s and
Judge Lisi’s recent Rhode Island District Court cases thus provide a
microcosm of how Booker has and has not changed sentencing outcomes.
WRIGHT
4/18/2006 12:31 AM
Incremental and Incendiary Rhetoric
in Sentencing after Blakely and
Booker
Ronald F. Wright*
I. INTRODUCTION
The Supreme Court’s decisions in Blakely v. Washington1 and
United States v. Booker2 prompted lots of talk about change in
state and federal sentencing law. How much change in actual
practice do these two cases portend? Some of the rhetoric about
sentencing is incendiary, predicting immediate upheaval and longterm turmoil in sentencing practice across many jurisdictions.
Other assessments use more incremental rhetoric, claiming that
Blakely and Booker do not change the fundamentals of sentencing
law and practice. It all depends on who you ask.
If you ask academics, they say the changes flowing from
Booker and Blakely were huge: our favorite analogies include
earthquakes, revolutions, and train wrecks.3 But academics
usually see legal change in these grand terms and consistently
* Professor of Law, Wake Forest University. I am grateful to David
Zlotnick, David Logan, and the other participants in the Sentencing Rhetoric
symposium at the Roger Williams University School of Law in October 2005.
1. 542 U.S. 296 (2004).
2. 543 U.S. 220 (2005).
3. See generally Frank O. Bowman, III, Train Wreck? Or Can the
Federal Sentencing System Be Saved? A Plea for Rapid Reversal of Blakely v.
Washington, 41 AM. CRIM. L. REV. 217 (2004); NORA V. DEMLEITNER ET AL.,
SENTENCING
LAW
AND
POLICY
(Supp.
2005-06),
available
at
http://sentencing.typepad.com (last visited Jan. 23, 2006). For a convincing
argument that Blakely and Booker will have little real impact on the
involvement of juries in sentencing, see generally Susan R. Klein, The Return
of Federal Judicial Discretion in Criminal Sentencing, 39 VAL. U. L. REV. 693
(2005).
461
WRIGHT
4/18/2006 12:31 AM
underestimate the power of the sprawling criminal justice system
to absorb almost any new thing into something more familiar.
The sentencing rhetoric sounds different, however, when it
comes from sentencing commissioners: they use incremental
language when speaking about sentencing. Interestingly, the
incremental rhetoric comes from commissioners regardless of the
substantive policy objective they are pursuing. If commissioners
want an increased role for juries, they cast that as the outcome
that requires the smallest incremental move from the current
situation. If they advocate an increase in discretion for judges,
then they portray that outcome as the shortest distance away from
current practices. The incremental language applies both to their
descriptions of the current effects of Booker and Blakely (“those
cases did not profoundly change our sentencing system”) and to
their descriptions of any preferred changes to the system (“the
proposal would change relatively little from the pre-Blakely status
quo”).
This incremental rhetoric from commissions does not usefully
describe the impact of Booker and Blakely on various sentencing
systems. Their language of incrementalism is not meant to
describe the past or present, but is designed instead to shape the
future legislative reaction to this new world. Sentencing
commissioners choose soothing words because most of them do not
want to wake the sleeping legislative dragon. The implicit
message to legislators is: “Nothing to worry about, because
everything is normal, more or less like you left it.”
On the other hand, some prosecutors now use incendiary
language to describe the changes in sentencing practice after
Booker and Blakely. In an effort to stir the legislature to action,
they portray the changes as enormous, casting current sentencing
practices as an emergency.
Among judges, the use of rhetoric about sentencing is more
mixed. Some judges use incremental language aimed at other
judges, trying to persuade their fellow judges that the desired
course is a legitimate and restrained one for judges to pursue. In
other cases, judges try to limit the docket impact of the Booker and
Blakely decisions and choose modest language that is best suited
to narrowing the reach of a doctrine and managing a docket. Still
other examples of judicial rhetoric are based on the expectation
that legislators are watching closely and might react badly if they
WRIGHT
2006]
4/18/2006 12:31 AM
INCREMENTAL AND INCENDIARY RHETORIC
463
do not like what they see.
On the other hand, not all judges use incremental language.
Some are saying, loudly enough for the legislative dragon to hear,
that the time for serious changes in sentencing has arrived.
All told, rhetoric about sentencing after Booker and Blakely
does not serve primarily to describe current sentencing practices
or to predict how the current system will adapt to change in the
short run. The real value of this sentencing language is to reveal
the speaker’s perceived relationship with the legislature.
II. INCREMENTAL RHETORIC FROM THE COMMISSIONS
Sentencing commissions in many states and at the federal
level had to respond to the Supreme Court decisions in Booker and
Blakely. In every case, commissions chose language emphasizing
the limited nature of any changes that the cases created or the
limited costs of their preferred adjustments to bring their systems
back into compliance with the Sixth Amendment. Interestingly,
the same rhetorical strategy played out, regardless of the exact
impact of the cases on the local sentencing rules or the precise
solution that the Commission supported. The soothing rhetoric of
the incremental, above all else, aimed to keep the Commission in
the lead role and to prevent the legislature from re-opening the
deepest questions of sentencing policy.
Minnesota was one of the states most directly affected by the
Blakely decision because its presumptive sentencing guidelines
system could not stand without either increasing the fact-finding
power of juries or decreasing the binding power of the guidelines
on judges.4 Two months after the Supreme Court decided Blakely,
however, the Minnesota Commission stressed the limited impact
of the decision in Minnesota:
[It] is very apparent that Blakely has changed criminal
sentencing in this country and the magnitude of that
change is something each individual state and the federal
government will need to decipher based on their own
4. See generally Jon Wool, Aggravated Sentencing: Blakely v.
Washington: Legal Considerations for State Sentencing Systems, POL’Y &
PRAC.
REV.
(Vera
Inst.,
Sept.
2004),
available
at
http://www.vera.org/project/project1_3.asp?section_id=38project_id=26&sub_s
ection_id=38 (last visited Jan. 23, 2006).
WRIGHT
4/18/2006 12:31 AM
sentencing structure. . . .
The recent Blakely v. Washington decision directly
impacts neither the constitutionality nor the structure of
the Minnesota Sentencing Guidelines. However, the
decision does affect certain sentencing procedures
pertaining to aggravated departures and specific sentence
enhancements that will need to be modified to meet the
constitutionality issues identified under Blakely. Those
procedures can be corrected, as demonstrated by the state
of Kansas, who addressed this very issue in 2001, with
limited impact on the criminal justice system as a whole.
The impact of Blakely on sentencing in Minnesota, while
temporarily disruptive, is limited in scope and can be
addressed within the current sentencing guidelines
scheme.5
The Commission’s report on the impact of Blakely went on to
emphasize that only 7.7 percent of the felony sentences in
Minnesota involved aggravated sentences that potentially raised
Blakely issues, and only 8 percent of those aggravated sentences
(a total of 79 cases in 2002) were resolved at trial rather than
through guilty pleas.6 In short, the Commission stressed the low
cost of fixing the Blakely problem by adding jury procedures
rather than by changing the basic foundations of the guideline
system, converting them to more voluntary guidelines. The same
calming message reappeared in the Commission’s further reports
to the legislature in September 2004 and January 2005.7
5. MINNESOTA SENTENCING GUIDELINES COMMISSION, THE IMPACT OF
BLAKELY V. WASHINGTON ON SENTENCING IN MINNESOTA: SHORT TERM
RECOMMENDATIONS 1 (Aug. 6, 2004), available at http://www.msgc.state.
mn.us/Text%20Only/reports_to_the_legislature.htm (last visited Jan. 23,
2006) [hereinafter “SHORT TERM REPORT”] (emphasis added).
6. Id. at 5-6.
7. MINNESOTA SENTENCING GUIDELINES COMMISSION, THE IMPACT OF
BLAKELY V. WASHINGTON ON SENTENCING IN MINNESOTA: LONG TERM
RECOMMENDATIONS
3
(Sept.
30,
2004),
available
at
http://www.msgc.state.mn.us/Text%20Only/reports_to_the_legilature.htm
(last visited Jan. 23, 2006) [hereinafter “LONG TERM REPORT”] (“The number
of affected cases is limited and will not constitute a crisis within the state. . . .
This report contains recommendations that outline procedures to be
implemented that will address the constitutional issues raised in Blakely and
still permit sentencing to continue under the state’s current sentencing
WRIGHT
2006]
4/18/2006 12:31 AM
465
While sending reassuring signals about the limited cost of
new jury proceedings, the Minnesota report ignored some
potentially enormous loose ends. Two features of the Minnesota
system—probation revocations and an enhancement for
committing a crime while still on probation, parole, or supervised
release—might trigger the Blakely jury requirement and
enormously increase the number of affected cases. The various
Minnesota reports mentioned these possibilities, but in each case
the discussion appeared late in the report in a brief discussion
that contained no estimates of the numbers of cases.8 The reports
kept these larger effects out of the spotlight.
The same patterns of rhetoric also appear in states where the
speaker seeks an outcome entirely different from the one that the
Minnesota commission favored. For example, in Tennessee, an ad
hoc Governor’s Task Force pushed for more voluntary guidelines.
They cast new jury proceedings as a dangerous and possibly
expensive departure from known practices: “Although we
recommend necessary changes, the essential components of this
proposed Act will retain the policies and purposes of the 1989 Act
that have served our State well.”9
The United States Sentencing Commission has spoken
cautiously, issuing relatively few reports or public statements
about the operation of federal sentencing post-Booker. In a new
series of monthly statistical reports, the Commission tracks some
scheme.”).
The Supreme Court’s decision in Blakely did not rule determinate
sentencing unconstitutional, nor did it rule aggravated departures
unconstitutional. What the Court’s ruling did indicate was that the
state’s current procedure for imposing aggravated departures and
statutorily enhanced sentences is unconstitutional. The proposed
modifications address those procedural issues while preserving the
ability to impose aggravated departures in cases when appropriate
and necessary to protect public safety.
MINNESOTA SENTENCING GUIDELINES COMMISSION, REPORT TO THE
LEGISLATURE 1, 5-6 (Jan. 2005), available at http://www.msgc.state.mn.us/
Text%20Only/reports_to_the_legislature.htm (last visited Jan. 23, 2006)
[hereinafter “ANNUAL REPORT”] (emphasis added).
8. See SHORT TERM REPORT, supra note 5, at 9-10; LONG TERM REPORT,
supra note 7, at 7; ANNUAL REPORT, supra note 7, at 5.
9. REPORT OF THE GOVERNOR’S TASK FORCE ON THE USE OF ENHANCEMENT
FACTORS IN CRIMINAL SENTENCING 3 (Feb. 17, 2005), available at
http://www.tsc.state.tn.us/geninfo/PRESSREL/2004/Blakely/sentencingdocum
ent%202-16-05.pdf (last visited Jan. 23, 2006).
WRIGHT
4/18/2006 12:31 AM
changes in practice without characterizing the importance or
likely source of the change.10
The few public statements from commissioners have
emphasized the need for careful, controlled changes to the system.
A statement from Judge Ricardo Hinojosa, the Chair of the
Commission, on the day after the release of the Booker decision
put it this way:
The U.S. Sentencing Commission is in a unique position
to continue to assist all three branches of government
during this period of transition. [The Commission] will
continue to fulfill its statutorily mandated functions such
as collecting sentencing data from all federal district
courts, amending the guidelines where appropriate, and
conducting sentencing-related research.11
Judge Hinojosa’s testimony to Congress in February 2005
emphasized that “guidelines still must be calculated and
considered,” and that “sentencing guidelines should be given
substantial weight,” two propositions that emphasize continuity in
the system.12 The testimony also pointed to an incrementalist
bottom line: “If Congress decides at some point to pursue
legislation, we hope that it will preserve the core principles of the
Sentencing Reform Act and, to the extent possible, avoid a
wholesale rewriting of a system that has operated well for nearly
two decades.”13
10. U.S. SENTENCING COMMISSION, SPECIAL POST-BOOKER CODING PROJECT
(Nov.
10,
2005),
available
at
http://www.ussc.gov/Blakely/
PostBooker_111005.pdf (last visited Jan. 23, 2006). The statistics appear in a
format that emphasizes continuity between practices in 2003 and 2005,
presenting the total percentage of “within guideline” sentences for each time
period, rather than calculating the percentage increase in judicial decisions to
sentence outside the guidelines.
11. News Release, U.S. Sentencing Commission, U.S. Sentencing
Commission Chair Comments on High Court Ruling (Jan. 13, 2005),
http://www.ussc.gov/PRESS/rel011305.htm (last visited Jan. 23, 2006).
12. Judge Ricardo H. Hinojosa, Chair, United States Sentencing
Commission, Testimony Before the Subcommittee on Crime, Terrorism, and
Homeland Security Committee on the Judiciary United States House of
Representatives,
at
5-6
(Feb.
10,
2005),
available
at
http://www.ussc.gov/Blakely/bookertestimony.pdf (last visited Jan. 23, 2006).
13. Id.
WRIGHT
2006]
4/18/2006 12:31 AM
467
III. INCENDIARY RHETORIC FROM PROSECUTORS
The soothing rhetoric from sentencing commissions contrasts
neatly with the words of alarm that prosecutors use when they
describe the effects of Blakely and Booker. Prosecutors and others
who want to rouse the legislative dragon argue that sentencing
law needs immediate action. They cast the current situation as a
major change from past practice and call for the legislature to
restore the system to its happier status before the Supreme Court
intervened. As with sentencing commissions, this rhetoric applies
regardless of the precise substantive changes to sentencing law
that the speaker seeks. The incendiary language about the
present and the appeal to restore better days from the past aims
for dramatic legislative action.
The best current example of such rhetoric comes from U.S.
Attorney General Alberto Gonzales, who diagnosed federal
sentencing problems in a speech to a victims’ rights group:
[The] mandatory guidelines system is no longer in place
today, and I believe its loss threatens the progress we
have made in ensuring tough and fair sentences for
federal offenders. . . .
More and more frequently, judges are exercising their
discretion to impose sentences that depart from the
carefully considered ranges developed by the U.S.
Sentencing Commission. In the process, we risk losing a
sentencing system that requires serious sentences for
serious offenders and helps prevent disparate sentences
for equally serious crimes. . . .
The federal sentencing guidelines were the result of
Republicans and Democrats coming together in response
to the high crime rates of the 1960s and 1970s to create
an invaluable tool of justice.14
Attorney General Gonzales went on to endorse a restructuring
of the guideline system, using guidelines without lids as the best
14. Alberto Gonzales, U.S. Attorney General, Prepared Remarks,
Sentencing Guidelines Speech, Washington, D.C. (June 21, 2005), available
at http://www.usdoj.gov/ag/speeches/2005/06212005victimsofcrime.htm (last
visited Jan. 20, 2006).
WRIGHT
4/18/2006 12:31 AM
way to “restore fairness and consistency in sentencing.”15 It is not
surprising that prosecutors would invite legislatures to change
sentencing laws, since there are powerful long-term trends that
reinforce an alliance between legislators and prosecutors on
criminal justice matters.16
IV. MIXED JUDICIAL RHETORIC
While prosecutors and sentencing commissioners have used
fairly consistent rhetoric about their sentencing systems, judges
have adopted many different rhetorical styles to describe
sentencing law and practice. This mixed use of sentencing
language reflects the eclectic views among judges about their
relationship with the legislature on sentencing matters.
Some judges believe that an overt discussion between judges
and the legislature about sentencing policy is not within the
judge’s job description. Consequently, they have used language
aimed only to convince other judges how to remain true to the
existing law or how to manage the challenges of a crowded judicial
docket. For example, when judges have discussed the availability
of appellate review for defendants who did not raise jury trial
rights in their appeals filed before the release of the Blakely or
Booker decisions, they have asked whether the constitutional
defect was serious enough to amount to “plain error” that an
appellate court can hear even in the absence of an explicit
reservation of the issue by the defendant. In most federal courts,
the appellate judges have ruled that the error is not “plain.” The
more incremental characterization of the legal error kept the
15. Id. (“. . . the sentencing court would be bound by the guidelines
minimum, just as it was before the Booker decision. The guidelines
maximum, however, would remain advisory, and the court would be bound to
consider it, but not bound to adhere to it, just as it is today under Booker.).
16. See William Stuntz, The Pathological Politics of Criminal Law, 100
MICH. L. REV. 505, 546-56 (2002). As I have argued elsewhere, Stuntz may
have overstated his argument in the context of sentencing law, as opposed to
the coverage of the substantive criminal law. See generally Ronald F. Wright,
Parity of Resources for Defense Counsel and the Reach of Public Choice
Theory, 90 IOWA L. REV. 219 (2004). Stuntz also fails to account for the
interesting variety of political experience in various states when it comes to
sentencing legislation. Stuntz’s general point about a long-term political
alliance between prosecutors and legislators, however, explains nicely the
general enthusiasm among prosecutors for legislative leadership in the
response to Blakely and Booker.
WRIGHT
2006]
4/18/2006 12:31 AM
469
impact on the appellate docket much smaller.17
Similarly, many discussions of “reasonableness” review in the
federal courts have involved an intramural conversation among
judges. In an effort to convince their fellow judges that their own
version of reasonableness review is legitimate, some judges have
pointed out how their preferred standards allow judges to make
familiar judgments without transforming the sentencing world.18
Other judges, however, have minimized the changes that the
Blakely and Booker cases brought to sentencing as a way to
prevent or moderate legislative action. Several state supreme
courts have interpreted their state laws in unlikely ways to avoid
any impact at all from Blakely.19 It is easy to imagine some
wishful thinking at work in these judicial rulings, a hope that the
state’s sentencing system could avoid the turmoil that would
happen if the legislature had to revamp an invalidated system.
More overtly, some judges have pointed out that sentencing
practices are more likely to provoke legislative action if judges
depart too often and too far from established sentencing patterns.
Take, for instance, Judge Paul Cassell’s defense of his decision to
accord great weight to the federal sentencing guidelines, even
though the Booker opinion made the guidelines somewhat less
binding:
The congressional view of how to structure that
sentencing system will surely be informed by how judges
respond to their newly-granted freedom under the
“advisory” Guidelines system. If that discretion is
exercised responsibly, Congress may be inclined to give
judges greater flexibility under a new sentencing system.
On the other hand, if that discretion is abused by
sentences that thwart congressional objectives, Congress
has ample power to respond with mandatory minimum
sentences and the like.20
17. See United States v. Rodriguez-Gutierrez, 428 F.3d 201, 204-06 (5th
Cir. 2005); United States v. Thompson, 422 F.3d 1285, 1300-02 (11th Cir.
2005).
18. See United States v. Mykytiuk, 415 F.3d 606, 607-08 (7th Cir. 2005);
United States v. Crosby, 397 F.3d 103, 114-20 (2d Cir. 2005).
19. See State v. Gomez, 163 S.W.3d 632, 648-62 (Tenn. 2005); People v.
Black, 113 P.3d 534 (Cal. 2005).
20. United States v. Wilson, 350 F. Supp. 2d 910, 931-32 (D. Utah 2005).
WRIGHT
4/18/2006 12:31 AM
Finally, there are judges who knowingly raise the rhetorical
temperature, likely aware that their language will open a policy
discussion with legislators.21 For instance, a number of judges
have refused to impose guideline sentences in crack cocaine cases
because those penalties are so much heavier than the penalties for
comparable amounts of powder cocaine. After reviewing the
original 1986 legislation that first created the 100:1 ratio between
penalties for crack and powder cocaine, one judge noted the lack of
any justification for this ratio in the legislative history, tracked
the harmful consequences of this ratio, and declared sentences
based on this weighting scheme to be “unreasonable” under
Section 3553(a).22
These last two categories—judges who adopt either
incremental or incendiary rhetoric with an awareness that
Congress is watching closely—are a sign of the times. In matters
of criminal sentencing, as in several other subject areas, judges
today must act with an awareness that the legislature returns to
these questions time and again. Any judicial pronouncements (but
especially the boldest pronouncements) are bound to bring forth a
legislative reply. Judicial rulings cannot afford to ignore
legislative responses on topics where the two branches will likely
interact over and over again.
These judicial announcements could be likened to “clear
statement rules,” pushing statutes in particular directions and
insisting that the legislature work exceptionally hard to push the
policy back in the opposite direction.23 More generally, these
21. For examples among state courts, see generally State v. Natale, 878
A.2d 724 (N.J. 2005); State v. Allen, 615 S.E.2d 256 (N.C. 2005).
22. See United States v. Smith, 359 F. Supp. 2d 771, 777-82 (E.D. Wis.
2005) (Adelman, J.); see also United States v. Perry, 389 F. Supp. 2d 278, 300
(D.R.I. 2005) (in context of reducing guideline sentence based on
unreasonableness of crack-powder distinction, court reviews federal
sentencing data regarding number of sentences imposed within guideline
boundaries: “Given that judges presently enjoy complete discretion regarding
whether or not to follow the Guidelines, this change is arguably modest and
demonstrates both judicial restraint and respect for the overarching goals of
the Sentencing Reform Act, consistency and fairness across the system.”). But
see United States v. Pho, No. 05-2455, 2006 U.S. App. LEXIS 153 (1st Cir.
Jan. 5, 2006) (holding that district courts cannot reject the 100:1 ratio).
23. Cf. Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (clear statement
rule disfavoring readings of statutes that could alter the usual constitutional
balance between state and federal governments); Atascadero State Hospital
v. Scanlon, 473 U.S. 234, 237-40 (1985) (clear statement rule disfavoring
WRIGHT
2006]
4/18/2006 12:31 AM
471
rulings create necessary devices for communication among some of
the major actors in sentencing policy, creating a “common law of
sentencing for an age of statutes.”24
V. CONCLUSION
In the world of sentencing after Blakely and Booker, rhetoric
reveals a relationship. Sentencing commissioners, who cast
sentencing changes as small and manageable, perceive that
legislative action takes the policy initiative out of their hands.
Prosecutors, who cast sentencing changes as large and
threatening, calculate that their perennial allies in the legislature
will refashion the sentencing laws in ways that favor them.
Meanwhile, judges have yet to find a consistent rhetorical voice
because they have not yet worked out a relationship with the
legislature. In the long run, judicial rhetoric that shows an
awareness of the legislature and a willingness to offer judicial
input on sentencing policy will serve us best.
congressional abrogation of Eleventh Amendment immunity).
24. Cf. GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES
(1982); Norval Morris, Towards Principled Sentencing, 37 MD. L. REV. 267
(1977); Douglas A. Berman, A Common Law for This Age of Federal
Sentencing: The Opportunity and Need for Judicial Lawmaking, 11 STAN. L.
& POL’Y REV. 93, 99-100 (1999).
MURAKAWA
4/18/2006 12:37 AM
The Racial Antecedents to Federal
Sentencing Guidelines: How Congress
Judged the Judges from Brown to
Booker
Naomi Murakawa*
On January 12, 2005, the Supreme Court held in United
States v. Booker that Federal Sentencing Guidelines violate the
Sixth Amendment jury-trial right, and thereafter judges must
only consider the Guidelines as advisory.1 Booker therefore ended
the eighteen-year era of mandatory Federal Sentencing
Guidelines, in which judges were required to “plot” convicted
criminals along an official Guideline table and then assign a
sentence as specified in the appropriate “cell.” The Supreme
Court’s gutting of legislatively-authorized mandatory sentencing
guidelines – seen first in Blakely’s 2004 holding against the
constitutionality of Washington State’s Sentencing Guidelines2
and then in Booker’s 2005 holding against Federal Sentencing
* Assistant Professor, Political Science, University of Washington;
Ph.D., Political Science, Yale University (2005); M.Sc., Social Policy, London
School of Economics (1997); B.A. summa cum laude, Women’s and Gender
Studies, Columbia University (1996). Professor Murakawa is currently
completing a book manuscript on the motivations and mechanisms driving
America’s racially distinctive punishment regime.
1. United States v. Booker, 543 U.S. 220, 226-27 (2005).
2. Blakely v. Washington, 542 U.S. 296, 305 (2004).
473
MURAKAWA
4/18/2006 12:37 AM
Guidelines3 – has prompted frenzied debates about the future of
criminal sentencing. Former Supreme Court Justice Sandra Day
O’Connor called Blakely a “No. 10 earthquake,”4 political scientist
Frank O. Bowman III characterized Blakely as a “train wreck,”5
and the legal scholar Douglas A. Berman called Blakely and
Booker “blockbuster rulings” that may be “the most consequential
and important criminal justice decision[s] not just in recent terms,
not just of the Rehnquist Court, but perhaps in the history of the
Supreme Court.”6 In contrast, Representative Maxine Waters (DCalifornia) categorized Booker as “not a big issue.”
For
Representative Waters, a member of the Congressional Black
Caucus and the Subcommittee on Crime, Terrorism and
Homeland Security, Booker was “not the major issue,” especially
for “those of us who understand what racism and discrimination
are all about.”7
With Booker alternately described as an earthquake, a train
wreck, and not a big deal, this article considers the Supreme
Court’s ending to mandatory Sentencing Guidelines by
reconsidering Congress’s initiation of mandatory Sentencing
Guidelines.
Congress mandated the creation of Sentencing
Guidelines with the Sentencing Reform Act of 1984,8 but this
article argues that members of Congress set the agenda for
censuring judges at least three decades earlier. In the mid-1950s,
3. Booker, 543 U.S. at 226-27.
4. Erik Luna, Gridland: An Allegorical Critique of Federal Sentencing,
96 J. CRIM. L. & CRIMINOLOGY 25, 54 (2005). Douglas A. Berman also
characterizes Blakely as a legal earthquake shaking the foundation of
structured sentencing reform. Go Slow: A Recommendation for Responding to
Blakely v. Washington in the Federal System Before the Senate Committee on
the Judiciary (July 13, 2004) (written testimony of Douglas A. Berman).
5. Frank O. Bowman, III, Train Wreck? Or Can the Federal Sentencing
System Be Saved? A Plea for Rapid Reversal of Blakely v. Washington, 41 AM.
CRIM. L. REV. 217, 217 (2004).
6. Douglas A. Berman, Punishment and Crime: Reconceptualizing
Sentencing, 2005 U. CHI. LEGAL F. 1, 41 (2005).
7. Implications of the Booker/Fanfan Decisions for the Federal
Sentencing Guidelines Before the Subcommittee on Crime, Terrorism, and
Homeland Security of the H. Comm. on the Judiciary, 109th Cong. 54 (2005).
[hereinafter Implications of the Booker/Fanfan Decisions] Representative
Waters argues that the controversy around Booker is ultimately far less
important than mandatory minimum statutes and their disproportionate
impact on African Americans.
8. 18 U.S.C. § 3559(c) (2000).
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JUDGING THE JUDGES
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southern Democrats and Republicans launched politically
prominent attacks on judges, denouncing judges as activist,
tyrannical, elitist, out of touch with American values, and
sympathetic to subversive groups. Indeed, since the Supreme
Court’s 1954 decision in Brown v. Board of Education,9 national
leaders have exploited the political profitability of judging judges.
In 1954, southern Democrats and Republicans denounced judicial
lenience in terms of lenience in loosening the racial order of Jim
Crow; in 1984, that same demographic of members of Congress
denounced judicial lenience in terms of lenience in criminal
sentencing. In short, political resistance to judicial discretion in
Brown shaped the agenda, rhetoric, and coalition of Congress’s
subsequent attacks on judicial discretion in criminal sentencing.
This article identifies the racial antecedents to Sentencing
Guidelines over two sections. Section I situates Sentencing
Guidelines within the broader sentencing revolution, and
questions the standard account of what sparked the sentencing
revolution. It has become almost conventional wisdom that
Sentencing Guidelines were borne of a transformation of ideals, in
which judicial discretion collapsed with the collapse of the
rehabilitative ideal.
In contrast, this section argues that
Sentencing Guidelines were part of larger Congressional attacks
on judges, and, moreover, Congressional attacks on judicial
discretion were borne of political profitability linked to racial
anxiety, not just disrupted ideals.
Section II reconsiders how Congress passed the Sentencing
Reform Act. Rather than offering a traditional legislative history,
this section identifies how pivotal members of Congress
constructed and attacked the racially liberal judge. The two
central conservative supporters of sentencing reform, Senators
John McClellan and Strom Thurmond, attacked racial
liberalization after Brown to the tune of three anti-judge themes:
judges abuse power, judges wrongly employ sociological reasoning,
and judges underestimate the need for stern discipline with
blacks. Like other southern Democrats and Republicans, Senators
McClellan and Thurmond echoed these themes in supporting
sentencing reform and punitive crime policy. In simple terms, the
political roots of the revolution in criminal sentencing can be
9. 349 U.S. 294 (1955).
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found in neither crime nor sentencing; rather, the antecedents to
the Federal Sentencing Guidelines are found in the longstanding
legacy of attacking racially liberal judges.
The arc of
Congressional politics from Brown to Booker therefore underscores
the necessity of following Representative Waters’s directive: to
understand sentencing reform, we must “understand what racism
and discrimination are all about.”10
I. THE SENTENCING REVOLUTION AS A REVOLUTION OF IDEALS?
From the nation’s founding through the first three-quarters of
the twentieth century, Congress and state legislatures rarely
interfered with judicial control over criminal sentencing. With
limited legislative oversight, judges decided the nature and length
of punishment, constrained only by statutory maximum sentences
and a handful of mandatory minimum sentences. Parole boards
similarly held broad discretion in determining ultimate release
dates, with prisoners usually eligible for release after serving onethird of the maximum sentence.11 This section examines why
Congress and state legislatures began hamstringing judicial
discretion after such a long tradition of legislative laissez-faire.
Scholars of Sentencing Guidelines often explain the
sentencing revolution as a revolution sparked by disrupted ideals.
The important scholarship of Douglas A. Berman highlights how
the
sentencing
revolution
suffers
from
conceptual
underdevelopment, and why he therefore seeks to “bring greater
conceptual order to a field that now seems so disorderly.”12
Berman suggests that sentencing during the era of vast judicial
discretion held philosophical coherence because it was “formally
and fully conceptualized around the ‘rehabilitative ideal.’”13
Under this ideal, trial judges and parole officials held broad
discretion “to allow sentences to be tailored to the rehabilitation
prospects and progress of each individual offender.”14 Kate Stith
and Jose A. Cabranes similarly argue that the longstanding
tradition of sentencing flexibility reposes on the rehabilitative
ideal, complicated by some uncertainty of the purposes of
10.
11.
12.
13.
14.
Implications of the Booker/Fanfan Decisions, supra note 7.
MICHAEL TONRY, SENTENCING MATTERS 4-6 (1996).
Berman, supra note 6, at 2.
Id.
Id. at 3.
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sentencing.15 In these accounts, the rehabilitative ideal cemented
the protocol of broad judicial discretion. And consequently,
judicial discretion went adrift with the decay of the rehabilitative
ideal. The sentencing revolution is therefore a “conceptual antimovement,” premised on the repudiation of rehabilitation and the
elimination of sentencing disparities.16
Portrayed as a battle of ideas, the declining rehabilitative
ideal of the 1970s is attributed to new research from experts and
new statements from judges. Scholarship mattered. In 1974,
Robert Martinson surveyed 231 studies of penal rehabilitation
from 1945 to 1967 and found discouraging results.17 Martinson’s
study was widely cited with the cynical synopsis “nothing works.”
In 1975, James Q. Wilson criticized the rehabilitative model as a
symptom of failed social liberalism and lenience, and he therefore
proposed fixed-term punishments.18 In 1976, two major reports
both proposed the end of indeterminate sentencing laws,
restrictions on parole, and fixed-term sanctions geared to the
offense and not the offender.19 Scholars of sentencing reform cite
this scholarship as centrally important to the declining
rehabilitative ideal of the 1970s.20
Alongside scholars, judges were also pivotal in the ideational
15. KATE STITH & JOSÉ A. CABRANES, FEAR OF JUDGING: SENTENCING
GUIDELINES IN THE FEDERAL COURTS 14 (1998). Stith and Cabranes offer a
deep genealogy of ideals by tracing the 1970s impulse for certainty and
uniformity to Enlightenment ideals.
One of the most prominent
Enlightenment thinkers on punishment, Cesare Beccaria, argued that
deterrence was best served by legislatures proscribing each offense and its
corresponding penalty. In this impressive lineage of ideals, Stith and
Cabranes show that “like Beccaria in the eighteenth century, the federal
Sentencing Guidelines today seek to replace the discretionary power of judges
with an elaborate, less intuitive, and more scientific system for the
elaboration of penal sanctions.” Id. at 11-13.
16. Berman, supra note 6, at 10-11.
17. Robert Martinson, What Works? – Questions and Answers About
Prison Reform, 35 THE PUBLIC INTEREST 22, 24-25, 48 (1974).
18. See JAMES Q. WILSON, THINKING ABOUT CRIME 170-71 (1975).
19. ANDREW VON HIRSCH, DOING JUSTICE: THE CHOICE OF PUNISHMENTS –
REPORT OF THE COMMITTEE FOR THE STUDY OF INCARCERATION (1976);
TWENTIETH CENTURY FUND TASK FORCE, FAIR AND CERTAIN PUNISHMENT
(1976).
20. For example, Douglas Berman highlights most of the above scholars
as central to the declining rehabilitative ideal. Berman, supra note 6, at 8.
Michael Tonry also identifies these scholars as central to the end of broad
judicial discretion. TONRY, supra note 11, at 9.
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move away from discretionary rehabilitation. In his 1973 book,
Judge Marvin E. Frankel proposed limiting judicial discretion to
end “justice without law.”21 After fifteen years as a U.S. District
Judge, Frankel rejected unfettered judicial discretion as
antithetical to the rule of law, and proposed the creation of an
administrative “Commission on Sentencing” that would enact
“binding guides” on courts. 22 Senator Edward M. Kennedy, the
chief sponsor of the Sentencing Reform Act of 1984, called Frankel
“the father of sentencing reform,” and scholars of sentencing
reform echo the expression as a measure of how ideas mattered.23
In short, the commonplace and commonsense explanation for
the sentencing revolution suggests the following causal chain.
Scholars and judges razed the rehabilitative ideal through the
1970s.
Senator Edward Kennedy’s subsequent sustained
campaign for sentencing reform, initiated in 1975, put sentencing
on the congressional agenda. Therefore the initial transformation
of ideals caused congressional intervention.
Though intuitive, the ideals-centered account has several
problems. The sociologist David Garland proffers a compelling
three-point critique. First, research contesting the viability and
value of rehabilitation has been widespread since the 1930s, and
therefore research of the 1970s carries no unique transformative
power. Second, research findings in the mid-1970s offered no
definitive pronouncements of the failure of rehabilitation. Even
though Martinson’s study incurred the summary “nothing works,”
the study actually shows that some things do work, and Martinson
later reformulated his claims to offer a far more optimistic account
of rehabilitation.24 Third, challenges to the rehabilitative ideal
could have been met with reasonable defenses, such as the claim
that rehabilitation programs are under-funded, under-staffed, and
undermined by the punitive context of prison.25 In the vast battle
of ideals, Garland makes a compelling case that critiques of
21. MARVIN FRANKEL, CRIMINAL SENTENCES: LAW WITHOUT ORDER 122
(1973).
22. Id. at 122, 123.
23. See, e.g., STITH AND CABRANES, supra note 15, at 35-36; Berman,
supra note 6, at 9; TONRY, supra note 11, at 9-10, 12-13, 24-26.
24. Robert Martsinson, New Findings, New Views: A Note of Caution
Regarding Sentencing Reform, 7 HOFSTRA L. REV. 243 (1979).
25. DAVID GARLAND, THE CULTURE OF CONTROL: CRIME AND SOCIAL ORDER
IN CONTEMPORARY SOCIETY 63, 65 (2001).
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rehabilitation were neither new, nor unequivocal, nor irrefutable
in the 1970s.
More fundamentally, it was Congress and state legislatures,
not disembodied ideals, that ultimately promulgated the
sentencing revolution. Critiques of the rehabilitative ideal were
not new to the 1970s, but massive legislative activism in
curtailing judicial discretion was. In the last third of the
twentieth century, legislatures undercut judicial discretion with
unprecedented passage of mandatory minimums, three-strikes,
and sentencing guidelines. During this period, Congress and all
state legislatures passed new mandatory minimums, in which the
legislative statute rather than the trial judge sets the minimum
sentence length. Most state legislatures have passed mandatory
minimums for repeat offenders (40 states), for crimes committed
using a deadly weapon (38 states and the District of Columbia),
for drug possession or trafficking (36 states and the District of
Columbia), and for drunk driving (31 states).26 Congress has
passed mandatory minimum statutes for all of these offenses and
then some. Three-strikes laws are a similarly popular legislative
constraint on judicial discretion. Washington enacted the first
three-strikes law in 1993, Congress followed suit in 1994, and
another 23 states had adopted two- and three-strikes laws by
1996.27 With sentencing guidelines, legislatures charge an extra26. BUREAU OF JUSTICE ASSISTANCE, 1996 NATIONAL SURVEY OF STATE
SENTENCING STRUCTURES 17 (1998) [hereinafter 1996 Survey].
27. Id. Alongside contraction of judicial discretion, legislatures have
curbed administrative discretion by eliminating parole boards and limiting
parole discretion through truth-in-sentencing statutes. PAULA M. DITTON &
DORIA JAMES WILSON, U.S. DEPARTMENT OF JUSTICE BUREAU OF JUSTICE
STATISTICS: TRUTH IN SENTENCING IN STATE PRISONS 3 (Jan. 1999) [hereinafter
TRUTH IN SENTENCING]. Since the turn of the century, parole boards have
exercised final authority in deciding when to release a prisoner. Twelve
states have eliminated discretionary parole, beginning with Maine in 1975.
Id. at 3. In 1984, Congress abolished the U.S. Parole Commission, which had
been entrusted to release selected inmates from federal prisons since 1910.
Id.; U.S. SENTENCING GUIDELINES MANUAL §1A1.1 (2004). Moreover, Congress
has effectively encouraged states to reduce the discretionary power of parole
boards through financial incentives for truth-in-sentencing statutes. TRUTH
IN SENTENCING, at 1. Truth-in-sentencing refers to sentencing practices that
reduce the uncertainty about the length of time that offenders will serve in
prison. In 1994, Congress offered financial incentives for states to establish
truth-in-sentencing, set at a benchmark of eighty-five percent time-served for
violent offenders. Id. Prior to 1994, only five states had truth-in-sentencing
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judicial body with creating uniform sentencing standards for
judges to follow. Seventeen states have created sentencing
guidelines, beginning with Utah in 1979.
Spearheaded by re-election-seeking legislators, the sentencing
revolution manifests the political profitability of attacking judges
as much as it manifests incentive-free ideals. The remainder of
this article therefore moves toward a political account of the
sentencing revolution by examining the political antecedents of
how Congress passed the Sentencing Reform Act of 1984. Why did
members of Congress begin judging the judges so harshly? How
did members of Congress characterize the problem of judicial
discretion? When did such major Congressional attacks on judicial
discretion gain political momentum? The next section addresses
these questions.
II. THE SENTENCING REVOLUTION AS A
REVOLUTION OF RACIAL POLITICS
With the Sentencing Reform Act of 1984, Congress created
the U.S. Sentencing Commission and charged it with developing
Sentencing Guidelines for all federal offenders. This section
identifies how and why members of Congress came to advocate
Sentencing Guidelines, even when doing so meant breaking the
near two-century tradition of entrusting judges with broad
sentencing discretion. My central claim is that Congressional
support for Sentencing Guidelines was indeed borne of discontent
with judges, but that this discontent was not limited to the policy
arena of criminal sentencing. Instead, members of Congress,
particularly southern Democrats and Republicans, launched
salient attacks against judges after judges began loosening the
legal order of Jim Crow. Where legal scholars make impressive
connections to find underlying conceptual clarity in sentencing
reform, my account identifies disconnected and tortured logic at
the core of Congressional support for Sentencing Guidelines. In
the last half of the twentieth century, the history of Congress’s
attack on judges is built on this critical disjuncture: in the mid1950s, judicial discretion on racial desegregation ignited attacks
statutes; after Congress, in 1994, established financial incentives, an
additional fourteen states passed truth-in-sentencing statutes set at the
eighty-five percent time-served benchmark. Id.
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481
on judges as liberal, lenient, elitist, susceptible to psychological
and sociological claims, and detached from the values of ordinary
Americans; in the mid-1980s, judicial discretion on criminal
sentencing incurred the same political attacks on judges set in
motion three decades earlier. The target – judges – remained
stable, while the issue slipped from lenience in Jim Crow to
lenience in criminal sentencing.
A. The Racial Roots of Attacking Judges
Congress passed the Sentencing Reform Act of 1984 by
bringing together an odd coalition with divergent interests in
sentencing reform. Sentencing reform’s chief advocate, the liberal
Senator Edward Kennedy (D-Massachusetts), forged key
partnerships with the southern conservative Senators John
McClellan (D-Arkansas) and Senator Strom Thurmond (R-South
Carolina).28 Sentencing reform gained momentum in 1975, when
Senator Kennedy hosted a dinner for Judge Frankel and
subsequently introduced a bill to form a U.S. Commission on
In subsequent
Sentencing to issue sentencing guidelines.29
legislation, Senator Kennedy worked closely with his conservative
allies. In 1977, Senators Kennedy and McClellan introduced a
similar bill, which passed in the Senate but died after a
subcommittee hearing in the House.30 In 1980, Senators Kennedy
and Thurmond, joined by Senator Orrin Hatch (R-Utah),
introduced a bill that retained the proposal to establish a
sentencing commission and added an additional measure to
abolish parole; neither chamber acted on the bill.31 In 1983 and
1984, Senators Kennedy and Thurmond worked together on the
bill that finally passed both houses, the Comprehensive Crime
Control Act of 1984, which included the Sentencing Reform Act of
1984 in its second section.32 President Ronald Reagan signed the
28. STITH AND CABRANES, supra note 15, at 39. Stith and Cabranes argue
that Kennedy was the central advocate of sentencing reform, and he enlisted
the support of McClellan and Thurmond as key critical conservative
advocates.
29. S. 2699, 94th Cong. The National Commission on Reform of Federal
Criminal Laws recommended the classification and grading of offenses in
1971, but bills in the 92nd and 93rd Congress won little support.
30. S. 1437, 95th Cong. (1977).
31. S. 1722, 96th Cong. (1979)
32. S. 1762, 98th Cong. (1983). U.S. SENTENCING COMM’N, FIFTEEN YEARS
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bill into law on October 12, 1984.33
Typical of the liberal and northern Democrats who supported
sentencing reform, Senator Kennedy’s decade-long campaign
emphasized the need for rationality and racial fairness in
sentencing.
Senator Kennedy consistently criticized federal
sentencing as “hopelessly inconsistent,” “arbitrary,” and
“desperately” in need of reform.34 Senator Kennedy characterized
his 1984 bill as “revis[ing] Federal sentencing procedures to
achieve a rationality, uniformity, and fairness that does [sic] not
To evidence his claims of
exist in the current system.”35
inconsistency, Senator Kennedy cited the famous 1974 study of
fifty Federal Second Circuit judges who, when given twenty
identical files based on actual cases, imposed wildly different
sentences. In one extortion case, for example, judges assigned
sentences ranging from three years imprisonment to twenty years
imprisonment plus a $65,000 fine.36 In line with ideals-centered
explanations, it appears that Judge Marvin Frankel persuaded
Senator Kennedy to recalibrate policy to new ideas.
For many conservative supporters of Sentencing Guidelines,
however, the political history of mistrusting judges goes far
deeper. Consider the lineage of attacking judges as it developed
over the long careers of sentencing reform’s two key conservative
supporters, Senators McClellan and Thurmond.
Senators
McClellan and Thurmond launched sustained criticism of judges
after the Supreme Court’s 1954 decision in Brown v. Board of
Education. Historically, it is nothing new for members of Congress
and other national leaders to target judges as objects of praise or
censure, and national political campaigns centralized the Supreme
Court as an object of political controversy in 1860, 1896, 1924, and
1936.37 On May 17, 1954, when the Supreme Court issued its
OF GUIDELINES SENTENCING: AN ASSESSMENT OF HOW WELL THE FEDERAL
CRIMINAL JUSTICE SYSTEM IS ACHIEVING THE GOALS OF SENTENCING REFORM 5
(Nov. 2004), available at http://www.ussc.gov/15_year/15year.htm.
33. STITH AND CABRANES, supra note 15, at 38.
34. Id.
35. 130 CONG. REC. 1644 (1984).
36. 130 CONG. REC. 1644 (1984). See ANTHONY PARTRIDGE AND WILLIAM
B. ELDRIDGE, THE SECOND CIRCUIT SENTENCING STUDY: A REPORT TO JUDGES 13, 9 (1974).
37. See generally Walter F. Murphy and Joseph Tanenhaus, Public
Opinion and the Supreme Court: The Goldwater Campaign, 32 PUB. OPIN.
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483
decision in Brown, the next wave of politically prominent judgebashing began.38 In Brown, the Supreme Court unanimously held
that the “separate but equal” standard of Plessy v. Ferguson39 was
no longer acceptable, and racial segregation in public schools was
therefore unconstitutional.40 The day of the Brown decision,
known to segregationists as “Black Monday,” ignited disdain of
the Warren Court amongst southern Democrats. Epitomizing the
south’s reaction was Senator Harry Byrd’s (D-Virginia) reference
to Earl Warren as “the modern Thaddeus Stevens, now cloaked in
the robes of the Chief Justice of the United States Supreme
Southern Democrats even drafted the Southern
Court.”41
Manifesto of 1956, a joint resolution signed by 101 members of
Congress from eleven southern states, which claimed that the
Court’s “exercise of naked power” had supplanted “personal,
political, and social ideas for the established law of the land.”42
Like their southern colleagues, Senators McClellan and
Thurmond expressed their anger over a changing racial order as
contempt for judges. Their criticisms hit three particular themes:
first, judges abuse their power; second, judges allow sociological
evidence to trump legal precedent; and third, judges ignore Jim
Crow’s vital role in minimizing crime and maintaining a safe
social order. Floor statements illustrate that McClellan and
Thurmond criticized the racial liberalism of judges through these
three themes.
The first post-Brown theme is that judges abuse their power.
After the Supreme Court rejected “separate but equal,” Senators
McClellan and Thurmond accused the Supreme Court of
extending its power over states’ rights and over Congressional
intent. Senator McClellan called Brown an “infamous decision” in
which the Supreme Court made it “the public policy of the United
States to undermine the traditional state and local control of
Senator Thurmond argued that Brown
public education.”43
th
violated Congress’s intent behind the 14 Amendment, because
QUART. 31 (1968).
38. CLIFFORD M. LYTLE, THE WARREN COURT & ITS CRITICS 10 (1968).
39. 163 U.S. 537 (1896).
40. Brown, 347 U.S. at 494-95.
41. LYTLE, supra note 38, at 6.
42. Id. at 12.
43. 110 CONG. REC. 7872 (1964).
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th
th
“the 39 Congress, which in 1866 framed the 14 Amendment to
the Constitution . . . also provided for the operation of segregated
schools in the District of Columbia.” Senator Thurmond concluded
that “this is positive evidence that the Congress did not intend to
th
prohibit segregation by the 14 Amendment.”44
In this view, the judges had subsumed the traditional powers
of states and Congress only to become a tyrant for black rights.
Senator Thurmond interpreted Brown as the Supreme Court’s
choice between two diametrically opposed forces: on one side was
the Constitution, and on the other side were civil rights
“propagandists” who sidestepped legislative intent and forced
people to “bow meekly to the decree of the Supreme Court.”45
Senator Thurmond stated that “while we are thinking of tyranny
in Hungary, I wish to take a few minutes to discuss tyranny in the
United States; and when I say that, I mean the tyranny of the
judiciary in the United States.”46 In his opposition to the Civil
Rights Bill of 1960, Senator Thurmond characterized Brown as an
“underhanded blow” and a “dastardly undercutting of
constitutional fabric” that had prompted “widespread and high
placed” public criticism of judges.47 The proper role of the judge,
in Senator Thurmond’s account, is to interpret the Constitution
based on “thought at the time of its adoption, without so much as
a glance at ‘current conditions.’”48 What case exemplifies sound
judicial interpretation? According to Senator Thurmond, Dred
Scott v. Sandford49 well represents the modest judicial reasoning
of examining original intent rather than current conditions.
Perhaps it was a perk for Senator Thurmond that Dred Scott also
held that blacks are not citizens.50
44. 102 CONG. REC. 4461 (1956).
45. Id.
46. 103 CONG. REC. 10333 (1957) (emphasis added).
47. 106 CONG. REC. 7620, 7622 (1960).
48. Id. at 7621.
49. Dred Scott v. Sandford, 60 U.S. 393 (1857).
50. Senator Thurmond quoted the syllabus of the Dred Scott opinion as
an example of proper original intent jurisprudence. The syllabus (notably not
a part of the majority opinion) in Dred Scott stated, “The change in public
opinion and feeling in relation to the African race, which has taken place
since the adoption of the Constitution, cannot change its construction and
meaning, and it must be construed and administered now according to its
true meaning and intention when it was formed and adopted.” Id. (quoting
Dred Scott, 60 U.S. at 393).
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485
The second post-Brown theme is that judges rely on evidence
from sociologists and psychologists, and therein judges have
abandoned narrow legal reasoning for the expansive reasoning of
social well-being. The Brown decision cited social science research
such as Gunnar Myrdal’s An American Dilemma and Kenneth
Clark’s doll studies, in which black children expressed preferences
for white dolls over black dolls.51 Senator Thurmond declared that
“what the courts have done was without color of law under the
Constitution. Instead the decisions hinged on the testimony of
sociologists and psychologists.”52 By considering the consequences
of segregation in psychological and sociological terms, judges made
themselves arbiters of social status.
The third post-Brown theme is that racial liberalization itself
– in the form of judicial holdings, legislative acts, and social
protests – generates more crime. Judges are centrally but not
exclusively indicted in this claim. Senator McClellan argued that
forced race-mixing invites crime, and even civil rights legislation
creating a Federal Employment Protection Commission would
incite crime.53 In opposing the “evil legislation” of the Civil Rights
Bill of 1964, Senator McClellan suggested that the bill “illegally –
unconstitutionally – deprives American citizens of their
fundamental right to be free from governmental coercion with
respect to the unhampered use and enjoyment of the fruits of their
labor, or the selection of their employees, and in the choice of their
associates.”54 Illegal coercion and race-mixing means “serious
crime will greatly increase rather than diminish following the
passage of this measure.”55 Senator Thurmond also held that
51. Brown v. Board of Educ., 347 U.S. at 495 n.11. Southern Democrats
like Senator James Eastland (D-Miss.) chastised the Court for basing its
opinions on the teachings of a “Swedish Carbetbagger” like Gunnar Myrdal.
LYTLE, supra note 38, at 22.
52. 101 CONG. REC. 1064 (1955).
53. 95 CONG. REC. 2086 (1949). McClellan stated that “enactment of the
FEDC, if it ever attempted to break down the segregation laws of the country,
would be a greater step toward incitement to crime in America than anything
else the Congress could do.” Id.
54. 110 CONG. REC. at 14304.
55. 110 CONG. REC. at 14305. McClellan contended that “we have only to
look at the experience of those States which have enacted statutes containing
provisions similar to those in this act. Those States have no better race
relations. In fact, in many instances they have greater tensions and worse
race relations than do those States which have not legislated in this field. We
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segregation was natural, and therefore forced race-mixing would
have violent consequences. In opposing the Civil Rights Bill of
1959, Thurmond argued that “political demands for integration of
the races” would bring a “wave of terror, crime, and juvenile
delinquency.” As proof for this claim, Thurmond pointed to “crime
after crime in integrated New York” and other “integrated sections
of the country.”56
The logic here is striking: race-mixing produces crime, and
therefore judges who facilitate racial integration have unleashed a
coming crime wave. Mechanisms remain opaque. Black civil
rights could breed crime via several avenues: perhaps race-mixing
is dangerous because blacks are inherently criminal; perhaps
forced integration will prompt white backlash; perhaps the
philosophy of civil disobedience itself undercuts the power of law.
Perhaps ambiguous mechanisms sustained the illogical and
visceral power of the claim.
Immediately after the Supreme Court’s 1954 Brown decision,
southern Democrats launched attacks on judges for lenience in the
arena of racial integration. Two conservative supporters of
sentencing reform, Senators McClellan and Thurmond, drew the
lines of the debate with three basic oppositions – the Constitution
versus civil rights propagandists, strict legal reasoning versus
ever-expansive sociological reasoning, and law-and-order with Jim
Crow versus crime and chaos with civil rights. In this racialized
rhetoric of good versus evil, judges choose the wrong side of the
equation.
B. The Legacy of Attacking (Racially) Lenient Judges
As the Supreme Court issued more controversial decisions
through the 1950s and 1960s, early criticisms of racially lenient
judges gained prominence even as their racial specificity became
more subtle. Rhetorical attacks on judges as lenient, elitist, and
supportive of subversive elements remained stable as the issue at
hand slipped from allegedly pro-integration decisions, to allegedly
pro-Communist decisions, to allegedly pro-criminal decisions.
read daily of racial strife, of demonstrations, of aggravated assaults, of
murders, and of all manner of crime being committed in those States having
so-called civil rights laws.” Id.
56. 105 CONG. REC. 18382, 18385 (1959).
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487
Southern Democrats attacked the Supreme Court early, often,
and fiercely after Brown, but Republicans joined in the attack as
the Supreme Court issued decisions that were widely interpreted
as pro-Communist and pro-criminal.57 In 1957, the Warren Court
handed down a series of decisions that ultimately protected the
procedural rights of Communists and persons suspected of being
Communist. The day in 1957 that the Court handed down its
decisions in Watkins, Yates, Sweezy and Service was known to
many Republicans and southern Democrats as “Red Monday,” due
to the characterization by critics that the decisions represented
the Court’s defense of Communist conspirators.58
Between 1957 and 1966, the Supreme Court’s “pro-criminal
decisions” expanded the rights of prisoners, criminal defendants,
and criminal suspects, many of whom were poor and black, some
of whom had confessed guilt.59 In Mallory v. United States, the
Supreme Court unanimously voided a District of Columbia rape
conviction.60 Violation of procedure was at the heart of the
decision: the Warren Court found that the police violated the
Federal Rules of Criminal Procedure by failing to arraign the
defendant before questioning him for seven hours, subjecting him
to a lie-detector test, and recording his confession for conviction.61
In a sense, the case pitted the value of procedural justice
(following the process) against the value of substantive justice
(convicting the guilty), and the Supreme Court upheld procedural
justice, declared the rape confession inadmissible, and thereby
voided the conviction – and for a black man no less! After
Mallory, Thurmond declared that the Court “has now issued an
edict which will give greater protection to such heinous criminals
57. C. HERMAN PRITCHETT, CONGRESS VERSUS THE SUPREME COURT, 19571960 126-27 (1961); LYTLE, supra note 38, at 6-7, 29.
58. Watkins v. United States, 354 U.S. 178, 204-06, 215 (1957) (limited
the power of the House of Un-American Activities Committee); Yates v.
United States, 354 U.S. 298, 312 (1957) (decriminalized communist
organizing); Sweezy v. New Hampshire, 354 U.S. 234, 253-55 (1957)
(invalidated state order that required a professor to disclose the nature of his
past expressions and associations); Service v. Dulles, 354 U.S. 363, 388-89
(1957) (guaranteed those under investigation for loyalty and standing the
right to a review with evidence and an independent determination).
59. THOMAS BYRNE EDSALL AND MARY D. EDSALL, CHAIN REACTION: THE
IMPACT OF RACE, RIGHTS, AND TAXES ON AMERICAN POLITICS 110 (1992).
60. Mallory v. United States, 354 U.S. 449, 455-56 (1956).
61. Id.; LYTLE, supra note 38, at 43.
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as rapists and murderers.”62
After Mallory, the Supreme Court extended procedural
protections for all kinds of politically dangerous groups such as
drug addicts, poor criminal defendants, and criminal suspects. In
Trop v. Dulles, the Supreme Court held that “cruel and unusual
punishment” is determined by the “evolving standards of decency
that mark the progress of a maturing society.”63 In Robinson v.
California, the Supreme Court held that imprisonment for drug
addiction was “cruel and unusual punishment” because drug
addiction warrants treatment rather than punishment in the form
of incarceration.64 In Gideon v. Wainwright, the Supreme Court
held that poor state defendants were entitled to state-provided
legal counsel for all felony offenses.65 In Escobedo v. Illinois, the
Supreme Court held that police must inform suspects of the right
to remain silent and the right to consult an attorney before
answering questions.66 The Supreme Court reaffirmed the rights
of the accused in Miranda v. Arizona, which provided guidelines
for carrying out Escobedo.67
These Supreme Court decisions were widely viewed as judicial
assaults on crime control, and members of Congress mobilized a
kind of counterassault against judges.68 After “Black Monday,”
“Red Monday,” and Mallory and its “pro-criminal” progeny,
members of Congress introduced bills to gut the impact of recent
decisions, to tighten judicial jurisdiction, and to raise judicial
qualifications. In terms of gutting recent decisions, there were
fifty-five bills introduced between 1954 and 1961 to slow the
desegregation process, and all but two bills were introduced by
southern members of Congress; not one of these bills was enacted
into law.
In terms of tightening jurisdiction, there were
approximately two hundred bills introduced between 1954 and
1961 to reform the judicial process, particularly by limiting
judicial appellate jurisdiction, and more than 150 bills were
introduced by southern members of Congress.69 In terms of
62.
63.
64.
65.
66.
67.
68.
69.
103 CONG. REC. at 10471.
Trop v. Dulles, 356 U.S. 86, 100-01 (1958).
Robinson v. California, 370 U.S. 660, 666-67 (1962).
Gideon v. Wainwright, 372 U.S. 335, 344 (1963).
Escobedo v. Illinois, 378 U.S. 478, 490-91 (1964).
Miranda v. Arizona, 384 U.S. 436, 469 (1966).
EDSALL AND EDSALL, supra note 59, at 111.
PRITCHETT, supra note 57, at 26-27; LYTLE, supra note 38, at 11.
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JUDGING THE JUDGES
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judicial qualifications, there were fifty-four bills introduced
between 1954 and 1961 to tighten qualifications, with fifty-one
bills introduced by southern members of Congress. Qualification
bills attempted to require all future appointees to the Supreme
Court to have at least five years judicial experience in a lower
federal court or in the highest tribunal of the states; both
qualifications would make the pool of potential appointees more
likely to be politically and socially conservative.70
By the time Congress gave its final roll-call votes on the
Sentencing Reform Act of 1984, the narratives of discontent about
judicial discretion had been in place for three decades, beginning
sharply with southern Democrats’ criticism of Brown v. Board of
Education in 1954 and gaining momentum after seemingly proCommunist and pro-criminal Supreme Court decisions. Criticisms
of judges in the 1950s and 1960s informed the criticisms that
continued through the 1970s and 1980s.
Recall the three
arguments launched against judges after Brown: judges abuse
their power, judges worship sociological evidence, and judges
disregard the beneficial constraints of Jim Crow.
These
arguments, issued first in debates over racial integration in the
context of low crime rates, had lasting power three decades later
in debates over sentencing reform and crime control. Some
supporters of Sentencing Guidelines emphasized a fairness
rationale, such as northern Democrat Senator Kennedy. But
other supporters of Sentencing Guidelines revealed a far more
complex rationale, such as southern Democrat Senator McClellan
and Republican Senator Thurmond.
The first Brown-inspired charge – judges abuse power –
retained its accusatory power throughout the second half of the
twentieth century, moving from the arena of black civil rights in
the 1950s to the arena of crime and sentencing policy in the 1960s
and beyond. Recall that in the mid-1950s southern Democrats
interpreted integration as a battle between the Constitution and
civil rights propagandists, and, so the political story goes, judges
sided with civil rights bullies. A decade later, Republicans courted
resentful white voters, particularly white southern Democrats, by
interpreting law-and-order as a battle between police and
criminals, and, so the political story goes, judges sided with
70.
LYTLE, supra note 38, at 18.
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criminal rights bullies. In the rhetoric of southern Democrats and
Republicans, the charge of judicial misuse of power transmogrified
from “judges wrongly empower black civil rights” to “judges
wrongly empower (black) criminal rights.” For example, in his
1968 Republican presidential campaign, Richard Nixon urged
“respect” for “courts and those who serve on them,” only then to
warn that “some of our courts in their decisions have gone too far
in weakening the peace forces as against the criminal forces in
this country.”71 In line with this attack on liberal judges, Nixon
endorsed limiting judicial discretion with “modernization” of the
federal criminal code, the policy precursor to the Sentencing
Guidelines. In his 1973 State of the Union Address, Nixon
advocated “modernizing” the “inadequate, clumsy, and outmoded”
federal criminal code. He added a punitive punch: “When I say
‘modernize,’ incidentally, I do not mean to be soft on crime; I mean
exactly the opposite. Our new code will give us tougher penalties
and stronger weapons in the war against dangerous drugs and
That is, “modernization” entails both
organized crime.”72
rationalizing the criminal code and disciplining the liberal judge.
In partisan rhetoric, the Warren Court’s allegedly soft-on-race
and soft-on-crime decisions were seen as the progeny of the
Democratic Party, and Democrats struggled with the image that
their crime policies were dictated by liberal legal experts, Ivy
League-educated judges, and the American Civil Liberties Union.
When Charles Schumer (D-New York) was first elected to the
House in 1980, he explained crime’s role in the Reagan
Revolution: “I didn’t understand why Reagan won until I got to
Washington. Crime was ripping apart my district. And who is
writing the crime legislation? The A.C.L.U. They weren’t just at
the tale; they were writing it.”73
During final debates over the Sentencing Reform Act of 1984,
supporters of Sentencing Guidelines trumpeted judicial
incompetence as a truism. Mistrust of judges took different forms:
the mild mistrust of liberal Democrats indicted judges for
71. Richard Nixon, Nomination Acceptance Address (Aug. 8, 1968).
72. Radio Address About the State of the Union Message on Law
Enforcement and Drug Abuse Prevention, 74 PUB. PAPERS 180 (March 10,
1973).
73. James Traub, Party Like It’s 1994, THE N.Y. TIMES MAGAZINE 44
(March 12, 2006).
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JUDGING THE JUDGES
491
coordination difficulties resulted in disparities, while the more
vitriolic mistrust of Republicans and conservative Democrats
indicted judges for liberal elitism that results in lenience. As a
classic example of mild mistrust, Senator Edward Kennedy
suggested, “with all due respect…judges themselves have not been
willing to face this issue and . . . remedy this situation.”74 Vitriolic
mistrust, however, categorized judicial misuse of power as a
problem of arrogance. A Reagan Administration official endorsed
Guidelines by emphasizing that judges are out of touch with
homespun common sense, explaining that “[t]he judge, while
trained in the law, has no special competence in imposing a
sentence that will reflect society’s values.”75
The second Brown-inspired charge – judges worship
sociological evidence – carried a central epistemological criticism
that remained prominent through the sentencing revolution.
Recall that in the mid-1950s southern Democrats chastised judges
for forsaking narrow legal reasoning in favor of expansive
sociological reasoning. Sociological reasoning, as employed by
judges and others, became stigmatized in both civil rights policy
and in crime policy as a marker of lenient structural explanations.
As Stuart Scheingold elaborates, crime is generally explained by
either structural or volitional accounts. Structural explanations,
Scheingold states, attribute crime to “social disorganization with
its roots in hierarchy, deprivation, coercion, and alienation.”
Taking society as the unit of analysis, structural explanations
take aim at the prevailing economic order and other kinds of
marginalization, and therefore structural crime control is “a
matter of formulating redistributive economic policies and
In contrast, volitional
generating consent for them.”76
explanations attribute crime to “individual pathologies – be they
moral, emotional, or genetic.” Taking the individual as the unit of
analysis, volitional explanations take aim at the offender,
generally suggesting punishment of the defective person.
According to Scheingold, political discourse tends to favor
volitional criminology, because punishment of the individual is
“easy, reassuring, and morally satisfying,” even if it is not the
74. 130 CONG. REC. at 975; STITH AND CABRANES, supra note 15, at 44.
75. STITH AND CABRANES, supra note 15, at 44.
76. STUART SCHEINGOLD, THE POLITICS OF STREET CRIME 23 (1991).
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most effective policy in the long-run. Scheingold calls this political
preference for volitional accounts “the myth of crime and
punishment,” in which the immediate satisfaction of punishing
the individual trumps the glacial and elusive goal of creating
social justice through structural reform.77
In line with Scheingold’s analysis, southern Democrats and
Republicans from the 1960s onward cast their pro-punitive policy
agenda as a much-needed turn away from sociological theory that
attributes crime to structural forces like poverty and racism.
House Leader Gerald Ford (R-Michigan) asked in 1966, “How long
are we going to abdicate law-and-order – the backbone of any
civilization – in favor of a soft social theory that the man who
heaves a brick through your window is simply the misunderstood
and underprivileged product of a broken home?”78 Presidential
candidate George Wallace similarly questioned how judges rely on
psychology in this exaggerated scenario: “If a criminal knocks you
over the head on your way home from work, he will be out of jail
before you’re out of the hospital and the policeman who arrested
him will be on trial. But some psychologist will say, well, he’s not
to blame, society is to blame.”79 Just as judges of the 1950s
exploited sociological accounts to show lenience toward blacks, the
argument goes, so too judges and liberal Democrats of the 1960s
and later exploited sociological accounts to show lenience toward
criminals.
The third post-Brown charge – judges generate crime by
loosening the beneficial constraints of Jim Crow – holds a subtle
and complex connection to sentencing and crime policy. In
overarching terms, the second half of the twentieth century well
illustrates the pivotal role of crime policy in the unsteady march of
racial equality. With Brown in 1954, the Civil Rights Act of 1964,
and the Voting Rights Act of 1965, national leaders confronted
legal barriers to black political citizenship, and the years that
followed saw waning support for overt doctrines of white
superiority.80 During this same period of celebrated progress
toward racial equality, the racial composition of prisons fully
77.
78.
79.
Id. at 4-7.
EDSALL AND EDSALL, supra note 59, at 51.
KATHERINE BECKETT, MAKING CRIME PAY: LAW AND ORDER
CONTEMPORARY AMERICAN POLITICS 34 (1997).
80. JOHN SKRENTNY, THE MINORITY RIGHTS REVOLUTION 65 (2002).
IN
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JUDGING THE JUDGES
493
reversed, with prisons turning from seventy percent white in 1950
Racialized
to seventy percent black and Latino in 2000.81
punishment expansion affects black communities with staggering
magnitude. Since 1995, roughly one in three black men between
the ages of twenty and twenty-nine are under some form of
Through felon
criminal supervision on any given day.82
disfranchisement laws, an estimated thirteen percent of all
African American men cannot vote.83 Since 2000 more black men
are in jail and prison than are in higher education, and between
1980 and 2000 three times as many African American men were
added to the prison system than were added to colleges and
universities nationwide.84 Black women face similar racial
disparity by sex: African American women have incarceration
rates six to seven times those of white women, a ratio roughly
equal to the disparity between African American and white men.85
This massive demographic rupture manifests more than the
end of rehabilitation in the history of ideals; in real terms, the
ever-expansive criminal justice state manifests another weapon in
the history of racial power. The fall of racially explicit exclusions
restructured national politics to give rise to race-laden crime
policy. Political attacks on judicial lenience – alongside a more
punitive electorate and the Democratic Party’s abandonment of
both black civil rights and progressive crime policy – constitute a
thread that ties together anti-black segregationism in the 1950s to
anti-black punitiveness in the present.
III. CONCLUSION
When the Supreme Court’s 2005 Booker decision ended
mandatory Federal Sentencing Guidelines, Justice Stephen
81. Loic Wacquant, Deadly Symbiosis, Rethinking Race and
Imprisonment in Twenty-First Century America, 27 BOSTON REV. 23, 23
(2002).
82. MARC MAUER & TRACY HULING, YOUNG BLACK AMERICANS AND THE
CRIMINAL JUSTICE SYSTEM: FIVE YEARS LATER (1995); PAIGE M. HARRISON &
ALLEN BECK, PRISONERS IN 2002, T. 13 (2003).
83. JAMIE FELLNER AND MARC MAUER, LOSING THE VOTE: THE IMPACT OF
FELONY DISENFRANCHISEMENT LAWS IN THE UNITED STATES (1998).
84. JUSTICE POLICY INSTITUTE, CELLBLOCKS OR CLASSROOMS?
THE
FUNDING OF HIGHER EDUCATION AND CORRECTIONS AND ITS IMPACT ON AFRICAN
AMERICAN MEN (2002).
85. Id.
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Breyer addressed the fate of criminal sentencing by writing:
“Ours, of course, is not the last word. The ball now lies in
Congress’ court. The national legislature is equipped to devise
and install, long-term, the sentencing system compatible with the
Constitution, that Congress judges best for the federal system of
justice.”86 This article contends that, if the sentencing revolution
is a game between Congress and federal judges, then Congress
has controlled the ball for at least the last third of the twentieth
century. After the Supreme Court’s 1954 Brown decision ended
the separate-but-equal doctrine, southern Democrats and the
future conservative advocates of Sentencing Guidelines began
censuring judges for playing fast and loose with the racial order of
Jim Crow. Accusations of judicial lenience in racial control came
as a trio of criticisms, namely that judges abuse their power,
judges misuse sociological evidence, and judges enable crime
through civil rights liberalization.
Attacks on the racially liberal judge set in the 1950s retained
prominence through the sentencing revolution, and the rhetoric
against judicial lenience shifted from lenience with blacks to
lenience with criminals. By the time Congress mandated creation
of Sentencing Guidelines in 1984, attacks on the racially liberal
judge had gained even more credibility with Warren Court
decisions that were widely perceived as pro-black, pro-Communist,
and pro-criminal. It is commonly noted that Federal Sentencing
Guidelines garnered support from liberals like Senator Kennedy
as well as conservatives like Senators McClellan and Thurmond,
but this article does more than show how liberals wanted
rationalized moderate sentences while conservatives wanted
rationalized harsh sentences. Instead, this article suggests that
support for Sentencing Guidelines goes deeper than preferences
on sentencing; that is, there is a deeper and decidedly racial
legacy to attacking judicial discretion. In attacks on liberal judges
from Brown to Booker, Congress has judged the judges for
transgressing racial guidelines.
86. John Gibeaut, All Sides Wary of Sentencing Ruling: Changes in Store
as Supreme Court Revokes Mandatory Guidelines, ABA JOURNAL E-REPORT,
Jan. 14, 2005.
IAN WEINSTEIN
4/19/2006 9:13 PM
The Historical Roots of Regional
Sentencing Variation
Ian Weinstein∗
I want to thank Professor David Zlotnick and the Editors of
the Roger Williams University Law Review for giving me this
opportunity to offer my own speculative thoughts on the deep
roots of regional sentencing variation in America and what they
may tell us about our current sentencing practices and
aspirations. I am a law professor and a criminal defense lawyer,
not a historian. It is with some trepidation that I stand before you
to suggest that our very persistent regional sentencing variations
have roots in the political struggles of Reformation England and
the cultures of the subgroups that populated the first American
colonies. I rely upon others for the historical proof, as you will see,
but I think I do have standing to argue to you that we should
consider whether or not there is room, even in federal sentencing,
to account for deeply embedded regional variations in our basic
conceptions of why and how we should punish. Aware as I am of
the dangers of essentializing and the ugly history of regional
variation in American penal practices, I still want to ask whether
Pennsylvanians really should be expected to punish transgressors
in exactly the same way as Virginians. I will suggest to you that
perhaps we should respect a modicum of regional variation and
not seek to eliminate every vestige of regional legal culture in
America.
I have long been interested in the hydraulic pressure of
discretion in federal sentencing. I started practicing in the
∗ Professor of Law, Fordham University School of Law, Supervising
Attorney, Fordham Criminal Defense Clinic. I want to thank Daniel Capra,
Daniel Freed, Michael M. Martin, Daniel Richman and Ronald J. Wright for
their comments.
495
IAN WEINSTEIN
4/19/2006 9:13 PM
Southern District of New York in the twilight of the old law
regime. I was in that relatively high volume federal defender
1
practice when Mistretta brought the fractious lower courts into
line and made everyone grapple with the Guidelines in day-to-day
practice. Like all of my colleagues, I sought every chink and
groove in the seemingly smooth edifice of the Guidelines and
asked every judge in front of whom I appeared to release a bit of
the now dammed up waters of discretion to bathe each of my
clients in the cool waters of mitigation. Many were happy to
release a trickle and often, at least in the beginning, we splashed
around a good deal at sentencing.
As harsh as many of those sentences seemed to me, I came to
understand that sentences in the Southern District of New York
were often more moderate than sentences in many other federal
courts. I learned that experienced lawyers might transfer a case
2
under Rule 20 to Philadelphia or Minneapolis, but would think
twice about sending a case up to Boston and would think long and
hard before sending a client down to Virginia or South Carolina.
The deals were better and the sentences more lenient, in a
seemingly predictable way, in some places.
When I went into the academy, as we say about the wonderful
opportunity to teach, I tried to look at variation and disparity in a
more systematic way. In 1998, I looked at the treatment of
3
downward departure cases under the then recent Koon standard
and found that at that time, the Second Circuit had never met a
downward departure it did not like, while the Fourth Circuit had
4
not yet seen a downward departure of which it could approve.
1. Mistretta v. United States, 488 U.S. 361 (1989) (upholding the
Sentencing Guidelines against constitutional challenge on separation of
powers grounds).
2. Rule 20 permits a defendant arrested in a district other than that in
which the charges are pending to resolve the case in the district of arrest,
with the consent of prosecutors in both districts. FED. R. CRIM. P. 20.
Although disposition in the district of arrest is not always available, it is
generally only strategically desirable if the defendant has reason to believe
he or she will receive better treatment in the district of arrest.
3. United States v. Koon, 518 U.S. 81, 116 S. Ct. 2035 (1996) (holding
that abuse of discretion is the proper standard of review of district court
decisions to depart downward from the U.S. Sentencing Guidelines and
applying that standard to reverse some departure grounds and affirm others
in the case of the two police officers convicted in the beating of Rodney King).
4. Ian Weinstein, The Discontinuous Tradition of Sentencing Discretion:
IAN WEINSTEIN
4/19/2006 9:13 PM
2006]HISTORICAL ROOTS OF SENTENCING VARIATION 497
Next I looked at rates of cooperation departures under §5K.1.1
5
and found tremendous local variation. In 1999, I found that there
were five times as many cooperation departures in the ten highest
cooperation districts as compared to the ten districts with the
6
lowest rates of cooperation.
Of course neither of these snapshots of particular practices
permitted me to say much about overall sentence length and
severity. As we all know, federal sentencing is a complex system
with many moving parts. My aim in that work was to understand
7
two mechanisms which permitted localization of results. I could
not say anything about the impact on overall sentencing patterns
for a number of reasons. For example, studying Circuit Court
cases only tells one how the appellate court ruled on the cases that
were appealed. In a district in which the prosecutor agrees to
many downward departures, there may be very few cases
appealed, but those that are appealed will tend to be weaker and
may be more likely to be reversed.
Thus a high rate of reversals of downward departure could be
evidence of harsh overall sentencing achieved through few agreedupon departures and restrictive appellate review or it could be
evidence of lenient overall sentencing, achieved through many
agreed-upon departures and appellate rejection of the relatively
few and weaker departure arguments rejected by the prosecutor
and pressed by defense lawyers. This is just one example of how
complex federal sentencing is and how dangerous it can be to
generalize from the appellate cases or from raw sentencing
statistics. More recent and more methodologically sophisticated
work suggests that much interdistrict variation turns on caseload
8
Another important and more
type and caseload volume.
Koon’s Failure to Recognize the Reshaping of Judicial Discretion Under the
Guidelines, 79 B.U. L. REV. 493, 495-96 (1999) (finding that some of the
circuits reversed virtually no district court departures under the abuse of
discretion standard).
5. See generally Ian Weinstein, Regulating the Market for Snitches, 47
BUFF. L. REV. 563 (1999) (discussing the broad prosecutorial discretion in the
area of substantial assistance departures and the court’s role once the
prosecutor makes a substantial assistance departure motion).
6. Id. at 602-03.
7. Id. at 568-69.
8. Katherine Tang Newberger, Caseload Matters: Caseload Composition
as an Explanation for Regional Sentencing Differences, 15 FED. SENT’G REP.
IAN WEINSTEIN
4/19/2006 9:13 PM
theoretical take on these questions is recent work that
thoughtfully discusses how much and what kinds of variation are
9
desirable within our federal structure. We need to deepen our
understanding of sentencing through sophisticated empirical work
and careful theoretical work to help us think about variation and
disparity in the post-Booker world.
My topic, however, is neither the details of federal sentencing,
nor the theory behind our federal structure. Today I want to draw
a very broad picture and see if any of you share my sense of
10
recognition. As I look at the post-Booker landscape, I note that if
a defendant does not want to receive a “Guideline sentence,” and
many do not, the old lore holds true. Stay in the Second, Third,
11
D.C., Sixth or Ninth Circuits. Those are the circuits below the
12
national average for post-Booker sentences within the guidelines.
If your case is in the First, Seventh or Eighth Circuits, you are not
too much above the national average, but as you move south and
west, the average goes up in this order: The Fourth Circuit,
followed by the Tenth, with the deep south Fifth and Eleventh
Circuits having the highest rates of compliance with the now
13
I recognize, of course, the dangers of
advisory Guidelines.
equating Guidelines compliance with harsh sentencing. It is,
however, a defensible generalization with many exceptions. There
are draconian judges whose instincts are moderated by the
Guidelines, but they are less common than the judges who would,
197 (2003) (finding that the types of cases prosecuted in a given district or
region explains a portion of regional sentencing variations). This article is
part of a symposium issue of the Federal Sentencing Reporter that included
an illuminating panel discussion of regional sentencing variations, moderated
by Professor Daniel Freed, 15 FED. SENT’G REP. 165 (2003).
9. Stephanos Bibas, Regulating Local Variations in Federal Sentencing,
58 STAN. L. REV. 137 (2005) (arguing that while some local variation is an
acceptable step away from the uniformity of federal law, much of the current
variation is unacceptable and proper regulation requires analysis of all
sources of variation, including prosecutorial discretion).
10. United States v. Booker, 125 S. Ct. 738 (2005) (excising portions of
Federal Sentencing Guidelines that made them binding to remedy a violation
of Sixth Amendment right to jury trial).
11. U.S. SENTENCING COMM’N, SPECIAL POST BOOKER CODING PROJECT,
GUIDELINE APPLICATION TRENDS, NATIONAL AND CIRCUIT 7-11, Data through
Sept. 30, 2005, www.ussc.gov/Blakely/PostBooker_101305.pdf (last visited
Dec. 19, 2005).
12. Id.
13. Id.
IAN WEINSTEIN
4/19/2006 9:13 PM
from time to time, exercise more leniency than the Guidelines
would suggest.
The overall compliance rate of the Circuit in which the
sentence occurs may not be a strong predictor, and it may well be
overwhelmed by information about the particular district or
district judge, but absent other information, the criminal defense
lawyer in me would prefer that my client be sentenced in the
Circuits that have lower rates of post-Booker compliance with the
Guidelines. The compliance rates follow the standard lore pretty
closely, and that is the coincidence that really got me thinking. In
fact, the pattern of compliance rates fits the story I want to tell
perfectly – so perfectly that I think it will intrigue you as it has
really intrigued me. Why has it so long been true that New York
and Pennsylvania have different, and less severe, sentencing
practices from New England, which differ again from the Upper
Midwest and from the South, where sentencing practices remain
14
harsher, even putting aside the well known death belt map?
Why have twenty years of sentencing reform failed to eradicate
this pattern? Perhaps these deep differences are a part of the
reason those reforms have foundered. My suggestion to you is
that each region retains a distinctive idea of what constitutes a
transgression worthy of criminal punishment and how
transgressions should be punished. The remarkable part is that
the ideas are hundreds of years old, have recognizable roots in the
mists of English history and have persisted through centuries of
change and ferment. Let me tell you the story of how and why
that may be.
In telling this story, I rely upon the wonderful book, Albion’s
Seed: Four British Folkways in America, by David Hackett
15
Fischer. This application of Prof. Hackett Fischer’s ideas to our
current sentencing regime is entirely my own and I want to be
clear that this wonderful book is a serious work of history and
makes no claims about the relationship between colonial America
and post-Booker Guidelines compliance rates. What Prof. Hackett
Fischer does argue is that Colonial America was settled in four
great waves of migration from Great Britain to North America
14. Id.
15. DAVID HACKETT FISCHER, ALBION’S SEED: FOUR BRITISH FOLKWAYS
AMERICA (1989).
IN
IAN WEINSTEIN
4/19/2006 9:13 PM
16
Each
during the seventeenth and early eighteenth centuries.
wave of migration brought a distinct cultural subgroup from Great
Britain, characterized by a set of folkways. Prof. Hackett Fischer
tells us that a folkway is:
. . . the normative structure of values, customs, and
meanings that exist in any culture. This complex is not
many things but one thing, with many interlocking parts.
It is not primarily biological or instinctual in origin, as
Sumner believed, but social and intellectual. Folkways
do not arise from the unconscious in even a symbolic
sense–though most people do many social things without
reflecting very much about them . . .
A folkway should not be though of in Sumner’s sense as
something ancient and primitive which has been
inherited from the distant past. Folkways are often
17
highly persistent, but they are never static . . .
Prof. Hackett Fischer then lists twenty-four elements that are
18
included in every folkway. These include patterns of written and
spoken language, family structure and function, regulation of
19
gender relationships and religious practice. Most importantly for
our purposes, he also discusses Order Ways, which he describes
as, “ideas of order, ordering institutions, forms of disorder, and
20
treatment of the disorderly.” Although other aspects of folkways
are relevant, Order Ways are central to how each group defined
transgressions against civil authority and punished them as
21
crimes.
Prof. Hackett Fischer argues, very convincingly I think, that
each of the four groups, the Puritans in New England, the
Quakers in the Delaware Valley, the Cavaliers in the Coastal
South and the Lowland Scots in the Upland South, brought a
22
More importantly, recognizable
distinctive set of folkways.
16. Id. at 785-88.
17. Id. at 7-8.
18. Id. at 8-9.
19. Id.
20. Id. at 9.
21. Id. at 11 n.10 (listing empirical indicators used to discuss order
ways).
22. Id. at 9-11.
IAN WEINSTEIN
4/19/2006 9:13 PM
traces of those folkways remain evident in modern America in
each of those regions and in the parts of the country settled by
23
each of those cultures. Clearly the persistence of these folkways
is a very complicated question in contemporary America, but let’s
see if the story Prof. Hackett Fischer tells rings as true to you in
the area of contemporary federal sentencing as it did to me.
The story of the great British migrations to America is also
the story of the religious and political ferment of seventeenth
century England. As we all know, the Puritans came to America
to escape the religious intolerance that was a major part of the
political repression that led to the English Civil War and the
execution of Charles I in 1649. Perhaps somewhat less well24
known today is that when England became more Puritanfriendly upon the death of Charles I and Puritan migration to
America decreased, England also became a much more difficult
place for supporters of monarchy like the Royalists, or Cavaliers,
who staged their own great migration to Virginia during
Cromwell’s rule in the Commonwealth period. The Mason Dixon
line is a nineteenth century creation, but its roots go back to
England. In seventeenth century England, the Puritans were
persecuted by, and later persecuted, the Cavaliers.
Those
animosities were not forgotten by those who came to America.
Deep as the common bonds forged by the Revolution and over two
23. The Puritan folkways spread through upstate New York and into
parts of the Upper Midwest, while the Quaker folkways spread into other
parts of the upper Midwest. The Lowland Scots folkways of the Upland
South spread into much of what we call the Sunbelt today, while the Gulf
Coast received a stronger measure of the Cavalier coastal south folkways.
HACKETT FISCHER, supra note 15, at 812-16.
For the provocative argument that New York City and its metropolitan
area retain significant traces of its Dutch heritage which set it apart from
both New England and Delaware, see, RUSSELL SHORTO, THE ISLAND AT THE
CENTER OF THE WORLD: THE EPIC STORY OF DUTCH MANHATTAN AND THE
FORGOTTEN COLONY THAT SHAPED AMERICA (2004).
I would be remiss if I did not acknowledge to this audience Rhode
Island’s special place as the home of dissent and toleration in New England
in an intolerant Colonial New England, a history whose traces can still be felt
in the Ocean State. A useful and short biography of the state’s founder,
highlighting his struggle to separate from the Massachusetts Bay Colony, is,
Edwin S. Gaustad’s book Roger Williams. EDWIN S. GAUSTAD, ROGER
WILLIAMS (2005).
24. Perhaps we have been less interested in celebrating our royalist roots
than in celebrating our dissenting roots.
IAN WEINSTEIN
4/19/2006 9:13 PM
hundred years of living as one nation are, sectional differences,
the fracture of the Civil War and the regional stresses that persist
today have deep roots. The differences are not limited to Boston
and Virginia. As we shall see, each of the four groups mentioned
above brought something distinctive to America and traces of each
remain identifiable.
The Puritan folkways regarding punishment reflected their
25
For them, the
desire for order, understood as social unity.
greatest virtue was obedience to the will of the community, which
26
in turn reflected the will of heaven. Their great love of obedience
and the intensity of their striving for order led to the somewhat
paradoxical fact that theirs was, and by some measures remains,
the American subculture that combined relatively less violence
27
with relatively harsher punishment. Their culture encouraged
and achieved a relatively high degree of obedience, so they had
relatively less need for violent enforcement of the law, yet their
28
horror of disobedience led them to punish it severely.
One measure of the strength of this folkway is seen in the
kind of criminal cases prosecuted in the Puritan courts. In New
England, crimes against public order, such as Sabbath breaking,
29
This reflected both the
were the most common kind of cases.
Puritan view that social unity was the proper measure of order,
30
and also their desire to enforce group norms. Property crimes
came next and crimes of violence were last in order of frequency
31
on the docket.
While striving for order as social unity appears to have
successfully limited individual violence and strengthened the idea
that criminal offenses were an affront to the group, rather than an
individual, the strength of Puritan devotion to group unity fueled
32
the tendency to punish harshly. The Puritans famously enforced
social order by burning witches at the stake, hanging and flogging
Quakers and publicly humiliating adulterers. The Puritans lived
25. HACKETT FISCHER, supra note 9, at 189-96 (discussing Puritan order
ways).
26. Id. at 189-90.
27. Id. at 192.
28. Id.
29. Id. at 191-92.
30. Id. at 189.
31. Id.
32. Id. at 192.
IAN WEINSTEIN
4/19/2006 9:13 PM
in a world in which peace reigned among men, but state violence
was readily visited upon those who transgressed against group
norms.
The Cavaliers who settled Virginia brought a distinctly
33
Theirs was a Royalist and Anglican
different idea of order.
34
Violations of order
influenced hierarchical notion of order.
offended either the authority of a superior or the honor of an
35
equal, not the norms of the group. In either case, violation of
public order offended an identifiable individual, not the unified
36
This aristocratic, hierarchical and individualist
social order.
social order was enforced with both frequent state violence and
37
Superiors were entitled, and
customary, private violence.
perhaps expected, to use violence against their social inferiors and
38
social equals could use violence against each other.
The courts were not as busy in Virginia as they were in New
39
England and they heard a different mix of cases. Violent crimes
40
The
occurred more frequently than crimes against property.
Virginia courts heard very few cases involving offenses against
41
public order and morality. This paints an overall picture of the
criminal justice system in colonial Virginia as part of a larger
system in which both official state violence and state-sanctioned
private violence were used to maintain social hierarchy and
42
redress affronts to personal dignity, honor and power.
The Quakers brought a third distinctive set of ideas of order
and transgression to the New World when they came to
Philadelphia and the mid-Atlantic region in the late seventeenth
43
and early eighteenth century. The Quakers saw order as social
44
peace, rather than social unity or preservation of hierarchy. For
the Quakers in America, social peace was realized when
33. Id. at 398-405 (discussing Cavalier order ways).
34. Id. at 398.
35. Id. at 401.
36. Id.
37. Id. at 400.
38. Id. at 400-03.
39. Id. at 404.
40. Id.
41. Id.
42. Id. at 404-05.
43. Id. at 584-89 (discussing the Delaware order ways).
44. Id. at 584.
IAN WEINSTEIN
4/19/2006 9:13 PM
individuals did not intrude upon others and the government left
45
each person alone. The colonial courts of the mid-Atlantic region
saw very few prosecutions for crimes against public order and
morality; most that were prosecuted were cases involving defiance
46
Those same courts
of the local elected peace-keeping officers.
heard roughly equal numbers of cases involving violations of
private rights and crimes against persons, in contrast to New
England, where private right cases predominated and the South,
47
where violent crimes predominated.
Most notably, the Quakers reduced the number of capital
offenses from more than two hundred to just two in the early
eighteenth century.48 They also adopted penal practices oriented
In those
toward rehabilitation, rather than punishment.49
instances where state violence was used, it was to punish crimes
against the peace of another rather than violations of social unity
or hierarchy.50 The Quakers’ view of order as peace, combined
with their belief in individual conscience, led to a system of
relatively less harsh punishment, often deployed in defense of
individual autonomy and more oriented toward rehabilitation.51
The fourth wave of migration to the New World was that of
the Lowland Scots, often called the Scots-Irish, who came
throughout much of the eighteenth century.52 These people came
seeking economic opportunity and settled the upland South, or
backcountry, inland from the rich coastal lands settled by the
Cavaliers.53 This group had its origins in the border lands
between England and Scotland, a region characterized by a long
history of unremitting hostility between the formerly dominant
Scots and the rising English. Long characterized by border wars
and resistance to growing English authority, these settlers
brought a fierce individualism and strong commitment to family,
54
clan and locality. Order in the backcountry was imposed by the
45. Id. at 585.
46. Id. at 586-87.
47. Id.
48. Id. at 587.
49. Id. at 589.
50. Id. at 588.
51. Id. at 588-89.
52. Id. at 608-09.
53. Id. at 633-34.
54. Id. at 605-14 (discussing the geographic and social origins of those
IAN WEINSTEIN
4/19/2006 9:13 PM
individual, and society was characterized by a very capacious
55
private sphere in which civil authority did not operate.
The backcountry idea of transgression was an extreme form of
the Cavalier notion that crime was predominately a violation of
personal, rather than group, rights. Largely unmitigated by ideas
of hierarchy and authority, backcountry order was defined by the
56
lex talionis, and enforced by both state and private violence. In
the backcountry, crimes of violence predominated in the courts,
far outnumbering crimes against property and crimes against the
57
In these courts, property crimes were often
moral order.
punished more harshly than crimes of violence, which were an
58
accepted part of the culture. In the backcountry, crime was
personal and best redressed by swift violence; official action was
59
an unattractive second best.
In this broad summary of one small part of a very careful and
impressive piece of scholarship, I know I have not done justice to
Prof. Hackett Fischer. My broad story of hierarchical Cavaliers,
authoritarian Puritans, peaceful Quakers and violent, libertarian
backcountry settlers, reduces a very complex phenomenon to such
vague generalities that some may find the picture unrecognizable
or of no explanatory value. For me, however, this picture offers
some explanation of the great persistence of regional sentencing
variations in America.
The broad pattern of harsher sentences and greater devotion
to the letter of the Guidelines, which distinguishes the South and
Sunbelt from other parts of the country, carries echoes of the
60
folkways of the Cavaliers and lowland Scots. The primacy of
who settled the Upland South).
55. Id. at 765-71 (discussing backcountry order ways).
56. Lex talionis is Latin for law of retribution or perhaps law as
retribution. The idea is often traced to the Code of Hammurabi and the
Biblical injunction, “an eye for an eye.” While there is a vivid debate about
whether the ancient principle is best understood as a mitigating reform,
imposing specific and graduated penalties rather than simply imposing death
for all offenses, in modern usage the idea is best understood as a relatively
stark kind of retributivism. Id. at 765.
57. Id. at 768.
58. Id.
59. Id. at 765-66.
60. Weinstein, supra note 5, at 633-42 (statistical appendix listing means
for overall sentences and percentages of guideline departures by district and
state).
IAN WEINSTEIN
4/19/2006 9:13 PM
retribution as the main justification for punishment reflects their
continued devotion to the lex talionis. Harsh sentencing also
reflects a relatively greater preference for violence, now channeled
into state-imposed punishment, as an appropriate response to
disorder.
I also suggest that the continued willingness of courts to
impose sentences within the Guidelines is, in part, a carryover of
devotion to a more hierarchical notion of social order in which
61
Hierarchical ideas of
positive rules carry even greater force.
social order may well have made it easier for all of the actors in
the system to accept very lengthy sentences for relatively lower
level players in narcotics and financial fraud cases, echoing as it
does the folkway of greater willingness to impose harsh penalties
upon lower status people. The idea that crime is an affront to the
honor of each individual victim, rather than the group as a whole,
also helps explain the greater attraction of the victims’ rights
movement in those parts of the country and the continued vitality
of the more straightforward idea of retribution in the lex talionis.
In contrast, New England, the Mid-Atlantic states and their
colonies throughout much of the upper Midwest, continue to rely
on the state to sanction violators in order to uphold ideas of social
62
order as unity or peace. This conception of disorder provides less
fuel for harsh sentencing than the personal ethos of the Cavaliers;
the tendency to focus on the offender in relation to society takes
the focus off the offender/victim dyad. The relatively less violent
cultures of New England, and particularly the Mid-Atlantic
region, begot less state-sanctioned violence in the form of harsh
punishments, but there is a story to be told about the
transmission of the Puritan taste for extreme violence to support
social order, which lingers on in somewhat harsher sentencing in
New England.
Perhaps the clearest way that this history continues to inform
American sentencing is in the vibrancy of restorative justice as a
61. I suspect there is also a story to be told about the role of religious
fundamentalism in encouraging plain meaning arguments in American law,
but Professor Hackett Fischer might suggest that we consider whether
contemporary fundamentalism (which has deep roots but is distinctively
influenced by innovations dating from the turn of the twentieth century) is a
cause or a consequence of the pre-existing folkways.
62. Weinstein, supra note 5, at 633-42.
IAN WEINSTEIN
4/19/2006 9:13 PM
63
sentencing idea in the Mid-Atlantic and upper Midwest.
Although unevenly distributed, the interest in restorative justice
has clear roots in the Quaker penological ideas of rehabilitation
and reintegration of the offender. Beyond restorative justice, it is
also the case that sentences appear to remain most lenient in
Pennsylvania and parts of the Midwest, reflecting the old Quaker
idea of order as peace and the strong Quaker distaste for
64
violence.
Of course there is so much more to be said about our nation,
its history and how we got to our present condition. I particularly
want to reemphasize the tentative and broad nature of this piece,
which I mean to provoke thought, not prove an argument. I note
again, as I did at the outset, the grave dangers of essentializing, or
trying to explain complex phenomena by one or two variables,
particularly when the phenomena are views on order and
authority and the explanation has the flavor of race or national
origin. I explicitly deny any claim that modern American judges
or lawyers hold a particular view on sentencing because they are
members of a particular ethnic subgroup. I have made no effort to
study the backgrounds of any judges and lawyers, nor do I
understand Prof. Hackett Fischer to be making a claim about
racial or ethnic background. Quite the reverse, it seems to me
that the power of his argument is the very remarkable claim that
in modern, mobile, diverse America, discernible differences persist
between Richmond and Boston, even though the people who live in
65
those places and execute the laws have changed so much.
I also hope it goes without saying that there is much more
that unites us as Americans than divides us as residents of one
region or another. There is clearly an American Criminal Justice
System, with dominant ideas about order and authority, but it
often speaks with a recognizable local accent. Those often minor
variations, on which I have focused in this essay, are surprisingly
persistent and may have very deep roots. They reflect small but
63. Id.
64. Id.
65. American mobility may offer one explanation for the persistence of
some of these differences, as individuals move to regions of the country where
others who share their views already live. The Cavaliers and Quakers may
have gotten the ball rolling, but perhaps mobility explains some of the
persistence of these attitudes.
IAN WEINSTEIN
4/19/2006 9:13 PM
important differences in our ideas of what it means to transgress
and why we punish, differences deeper and more nuanced than
which of the four traditional reasons for punishment we prefer.
Deeper than our commitment to retribution or rehabilitation is
how we think about the social order and our place in it. Do we see
ourselves in relation to, and included in, a social order that made
us all equal before God, as did the Puritans and the Quakers? Do
we see ourselves in opposition to it, as did the Lowland Scots or
very much in terms of our hierarchical place in the established
social order, as did the Cavaliers? Each answer may lead us to
punish crime differently, as I have argued above, and also to
emphasize different kinds of transgressions in our criminal law.
Regional attitudes about income and alcohol tax enforcement may,
in part, reflect these differences.
It also bears noting that I have only talked a little bit about
four regions settled by English speakers in the early history of our
nation. I offer no speculation about the impact of other cultures in
those regions or in other parts of the country. The west coast has
a long Latino tradition, Louisiana has always had the influence of
its Civil Law past and we are now integrating many new
Americans who bring folkways from Asia and Africa. There are
stories to be told in each of those regions and new stories, yet to be
lived, of how those folkways will combine or interact with those
already here.
But with all those caveats, and recognizing that there are
many different levels of analysis, it still seems valuable to
recognize that the great American experiment in combining
diverse groups has always been characterized by the pull of great
unifying moments and the push of compromises that permit
sectional, and other, differences to coexist in our federal structure.
That story can be told about big issues on which compromise was
ultimately impossible and unwise, like slavery, and about other
matters on which ongoing compromise is the only viable solution,
such as sectional differences on international trade policies. Much
ink has been spilled arguing that sentencing is a matter of
principle and that disparity is a simple injustice which cannot be
tolerated. It seems to me that local control and variation is the
cornerstone of American criminal law and although I recognize
the importance and appeal of a uniform federal law, there may
well be deeply embedded limits to uniformity.
IAN WEINSTEIN
4/19/2006 9:13 PM
The Guidelines came into being at a time when untrammeled
judicial discretion was no longer tolerable, as it rubbed up against
the pull of equal treatment. The Guidelines were just one part of
the tremendous nationalization of our criminal law in the second
half of the twentieth century, realized through federalization,
Model Penal Code recodification and the emergence of criminal
law as a great political issue at all levels of government. The
trend toward greater uniformity in our criminal law was itself just
one aspect of the great homogenization of American culture that
characterized the post-World War II period.
But nationalization and the move to uniformity can usher in a
responsive, or corrective, sentiment for sectionalism. Seen in this
light, Booker was a corrective to an excessive push for national
uniformity. Just as untrammeled discretion became intolerable,
so too did the irritation caused by the conflicting sensibilities
about punishment in different parts of the country. New Yorkers
were never happy with attempts to compel them to punish crime
in exactly the same way as Virginians, who were no more happy to
have New York or Massachusetts ideas of order and punishment
forced upon them.
I have argued elsewhere that Booker can be understood as the
latest installment of the Supreme Court effort to police the
boundaries among the branches and restore judicial authority
after a period of legislative and executive ascendancy in criminal
66
law and sentencing. Today I have argued to you that the same
legal developments are also an effort to rebalance the power of
regional and national visions of our criminal law. Being citizens
of one nation and subject to federal law, citizens of Boston and
Richmond could not go on sentencing defendants in federal court
as if each judge were a representative of a sovereign, state-based
district. But correcting that problem did not erase the
fundamental regional differences a federal state can celebrate, if it
can find the right middle ground between total rigidity and
completely individualized sentencing.
56. Ian Weinstein, The Revenge of Mullaney v. Wilbur: U.S. v. Booker
and The Reassertion of Judicial Limits on Legislative Power to Define Crimes,
84 OR. L. REV. 393 (2005).
WEINSTEIN AND WOLFSON
3/25/2006 9:54 PM
Toward a Due Process of Narrative:
Before You Lock My Love Away,
Please Let Me Testify1
Stephanie Weinstein∗ & Arthur Wolfson∗∗
I. INTRODUCTION
Stories, parables, chronicles, and narratives are powerful
means for destroying mindset – the bundle of
presuppositions,
received
wisdoms,
and
shared
understandings against a background of which legal and
political discourse takes place. These matters are rarely
focused on. They are like eye glasses we have worn a long
time. There are nearly invisible; we use them to scan and
interpret the world and only rarely examine them for
themselves.2
This paper focuses on a sampling of such stories, all relating
* Associate, Jackson Lewis LLP. J.D. University of Pittsburgh School
of Law (2005); B.A. University of Michigan, with distinction (2001). I am
grateful to Amit Patel for his continuing support and inspiration.
** Law Clerk, The Honorable Richard A. Morgan, Office of
Administrative Law Judges, United States Department of Labor. J.D.
University of Pittsburgh School of Law (2005); B.A. College of William &
Mary (1999).
This paper was presented at the Symposium on Sentencing Rhetoric:
Competing Narratives in the Post-Booker Era at Roger Williams University
Ralph R. Papitto School of Law. We would like to thank Professors Richard
Delgado and Jean Stefancic, without whom this paper would not have been
possible. We would also like to thank Professor David Zlotnick for including
us in an impressive symposium.
1. COMMON, Testify, on BE (Geffen Records 2005).
2. Richard Delgado, Storytelling for Oppositionists and Others: A Plea
For Narrative, 87 MICH. L. REV. 2411, 2413 (1989).
511
3/25/2006 9:54 PM
to a single event and interwoven among each other. Part II
presents three competing narratives intrinsic to the criminal
justice system—that of the defendant, the victim, and the
prosecutor.3 In Part II we describe each narrative. We delve into
the societal forces that drive each narrative in Part III. Part IV
provides a brief description of narrative theory. Part V concludes
by exploring the idea of a meta-narrative, a hypothetical due
process of narrative. That is, which narrative wins out and how
does that narrative do so? Is there one “truer” narrative?
II. THREE COMPETING NARRATIVES
As Richard Delgado observed in his famous article, “A Plea for
Narrative,” we can describe the same object or event in many
ways.4 Moreover, “[w]e participate in creating what we see in the
very act of describing it.”5
The story that we relate may be a familiar one—the much
publicized story of Marcus Dixon, a high school football star. His
case created protests from jurors, attention from national media,
including the Oprah Winfrey show, and scrutiny of the laws that
come with required minimum sentences. His trial also presented
the classic case of “he said/she said,” with two teenagers at the
center of the controversy and three distinct accounts of the same
set of events. This clash of narratives was especially acute
because it took place in the course of a loaded race trial. The
defendant strenuously asserted that the young woman led him on
and that the state was prepared to sell him down the river
because of who he was. The victim, by contrast, maintained that a
violent black male had violated her pristine white virginity, while
the prosecutor proceeded on the theory that we needed to get such
dangerous criminals in check. Consider these narratives in
further detail.
A. Defendant’s Narrative
Marcus Dixon, an 18-year-old African American high school
3. A large part of the narrative and societal forces that drive it is a
partly fictional embellishment of actual events, based upon the authors’
speculations and imaginations.
4. Delgado, supra note 2, at 2416.
5. Id.
2006]
3/25/2006 9:54 PM
TOWARD A DUE PROCESS OF NARRATIVE
513
senior in Georgia, a star football player with a 3.96-grade point
average and a full scholarship to attend Vanderbilt University,
had it all.6 On February 10, 2003, he met a girl, a sophomore
classmate in a home economics class, after school and arranged to
visit her in a classroom trailer where she was working as a
student custodian.7 The two flirted a little and had consensual sex
on a table in the back of a classroom.8 The two planned the
assignation ahead of time. Marcus knew the girl, thought highly
of her—that she was smart, laid-back, but very talkative, friendly
and flirty with him.9 She loved to joke around with him. She
seemed very sweet until “things went down;” after that, it was as
if she was a totally different person. As a black male teenager, he
had experienced racism first hand, but he never thought that
being with a white girl was that big of a deal. His white adoptive
parents taught him from a young age to see people, not color. But
now he thinks differently. Maybe things went a little too far, but
there is no way that this should have landed him in prison. And it
would not have, he believes, if he was not a black guy with a white
girl in a small southern town populated with overzealous adults
out to get him.
B. Victim’s Narrative
The girl felt that Marcus Dixon’s flirtations were just that,
that they were not going to lead to anything physical. After all,
she is a religious Caucasian girl who is fearful of her father’s
opinion of her. She liked Marcus, but never wanted to have sex
with him. She was just playing around, but never wanted things
to go so far. That is why she told the school counselor and then
agreed to see a doctor.10 A sexual assault examination of her
found possible signs of force.11 She was physically injured and
emotionally torn apart. She sued the school for $5 million,
claiming that it did not properly punish Marcus for his previous
6. The Associated Press, Star Football Player Nearing Last Chance for
Freedom, http://www.accessnorthga.com/news/ap_newfullstory.asp?ID=29199
(last visited Jan. 13, 2005).
7. Id.
8. Id.
9. Id.
10. Id.
11. Id.
3/25/2006 9:54 PM
offenses or report them to the police.12 And Marcus’s scholarship
to Vanderbilt has been revoked. But all of that is little consolation
because her life will never be the same.
C. Prosecutor’s Narrative
Leigh Patterson, the district attorney for Floyd County, has a
difficult job. She must apply the law that she believes the facts
dictate. Her experience has not prepared her for a case where the
emotions run so high. After careful deliberation, Patterson
attempts to charge Dixon with the most serious crime she can—
rape.13 She contends that if such things happened to a bride on
her wedding day there would not be a marriage the next day.14
Patterson argues that Marcus Dixon had a history of minor sex
offenses in school before the rape accusation.15 She tells the jury
that he once exposed himself to a girl in class and, on another
occasion, put his hand down a girl’s pants.16 The jury acquits
Dixon of the rape, battery, assault, and false imprisonment
charges, but finds him guilty of statutory rape and aggravated
child molestation.17 In order to avoid a misdemeanor charge
under Georgia’s statutory rape law, teenagers who engage in
sexual intercourse must be no less than three years apart in age
and one must be more than sixteen years old.18 The punishment
for aggravated child molestation is a ten-year mandatory
sentence.19
III. SOCIETAL FORCES THAT DRIVE EACH NARRATIVE
In analyzing these narratives, it is important to note the
societal forces that drive each one.
The defendant’s background, race, upbringing, and mental
illness all contribute to how the criminal justice system treats
him. Societal forces always play a large part in the defendant’s
narrative. In Marcus Dixon’s case, his race at least partially
12.
13.
14.
15.
16.
17.
18.
19.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
2006]
3/25/2006 9:54 PM
515
determines his narrative. He wonders why he is being put
through such things and why the community, judge, and jury do
not believe his story, because in his mind it is the truth. Because
Marcus was a young black man in a white community, the
community automatically had a feeling that he would do
something wrong. Images of black criminality occur against a
background of sky-high incarceration rates of young black males.20
If this had happened in a predominantly black community, the
black defendant would have been more readily believed over the
white victim.
Every crime creates at least two victims: society, which
suffers a violation of its laws, and the actual victim, who suffers
an injury to her person or property.21 The actual, physical victim
takes on the role of witness for the prosecution.22 The criminal
justice system fails to grant victims of crimes any more prominent
role in the dispensation of criminal justice.23 Because victims do
not participate directly in the criminal justice system, they may
suffer a “second victimization” at the hands of the very system
designed to perform justice on their behalf.24 Many victims show
their dissatisfaction by removing themselves from that system and
refusing to testify.25 This victim does not. Her whiteness assures
the jury that she is telling the truth.
The prosecutor is a public servant. Her duty is to seek
justice for the victim, the victim’s family, the community, the
justice system, and all of society.26 Prosecutors seek to convict
with zeal, placing the responsibility to protect the rights of the
20. See William J. Sabol, Crime Control and Common Sense Assumptions
Underlying the Expansion of the Prison Population, THE URBAN INSTITUTE
(May 1, 1999), available at http://www.urban.org/publications/410405 (last
visited Jan. 13, 2006).
21. Karen L. Kennard, Comment, The Victim’s Veto: A Way to Increase
Victim Impact on Criminal Case Dispositions, 77 CALIF. L. REV. 417, 417
(1989).
22. Id.
23. Id. This is arguably shortsighted because the continued functioning
of the criminal justice system depends on victim cooperation in reporting
offenses and in assisting in the prosecution of crimes.
24. Id.
25. Id.
26. Carolyn B. Ramsey, The Discretionary Power of “Public” Prosecutors
in Historical Perspective, 39 AM. CRIM. L. REV. 1309, 1310 (2002).
3/25/2006 9:54 PM
accused on the defense counsel.27 But the prosecutor must act
with reasoned judgment. While emotion drives the other two
parties, the prosecutor rationally seeks the singular legal answer
to the complex problem. In the end, the prosecutor represents the
interests of the state in delivering justice. Because the community
in which Marcus Dixon lives is an all-white one, the prosecutor,
who is white, may also feel pressure to protect the majority of
constituents who vote for her.
IV. NARRATIVE THEORY
Richard Delgado and Jean Stefancic have pioneered the use of
narrative in law and legal scholarship.28 The narrative paradigm
they posit comprises a host of stories competing for attention.
Often, the two stories are a majoritarian tale and a counterstory.29
Each story typifies the outlook of a group with a clearly defined
set of experiences and interests.30 Upon repeated telling, each
becomes a constructed reality for the storyteller and his or her
group.31
The first part of the narrative paradigm is the majoritarian
tale. This is generally the story of the dominant group.32 It
evolves into the majoritarian tale when it becomes the constructed
reality for not only the group that tells it, but also society at large.
Upon repeated telling, the majoritarian tale often becomes bound
up with socially acceptable norms, conventions, and
understandings.33 As such, the story often goes unquestioned.
However, in probably its most important teaching, narrative
theory considers these presumed truths to be nothing more than
stories.
The second part of the narrative paradigm is the counterstory.
While there can only be one majoritarian tale, a given situation
27. Id. at 1311.
28. See e.g., Richard Delgado & Jean Stefancic, Norms and Narratives:
Can Judges Avoid Serious Moral Error?, 69 TEX. L. REV. 1929 (1991); Richard
Delgado & Jean Stefancic, Imposition, 35 WM. & MARY L. REV. 1025, 1029
(1994).
29. Delgado, supra note 2, at 2418.
30. Jane Baron, Resistance to Stories, 67 S. CAL. L. REV. 255, 263 (1994).
31. Delgado, supra note 2, at 2416-17.
32. Id. at 2412.
33. Richard Delgado, On Telling Stories in School: A Reply to Farber &
Sherry, 46 VAND. L. REV. 665, 666 (1993).
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517
can lead to one or more counterstories. The counterstory is a
different account of the same set of facts that the majoritarian tale
explains. However, it is often put forth by a different group and
often highlights different events, sequences, and is told with a
different tone.34 However, it is important to note that the main
purpose of the counterstory is not to be the voice of an
underrepresented group.35 Rather, it is to challenge the presumed
truth of the majoritarian tale. In doing so, the counterstory serves
two purposes: (1) It unmasks the majoritarian tale as merely a
story, and not unqualified truth; and, (2) It shows that if the
common assumptions of a given context are susceptible to
question, normative change within that context is indeed possible.
V. DUE PROCESS OF NARRATIVE
Narrative theory provides a basis for determining which of
the three narratives will control in a criminal sentencing
proceeding. We start, at the outset, with the baseline point that
one of the three aforementioned narratives wins out. We say it
“wins out” for two reasons: (1) On a theoretical level, the
controlling narrative becomes the constructed reality for the
context of the case; and (2) From a practical perspective, it will go
a long way in determining the case’s ultimate outcome.36
In considering narrative theory, a three-step process should
determine which narrative controls. This is our proposed “due
process of narrative.” As a point of qualification, it is important to
note that “due process of narrative” does not function as a perfect
science, but rather as a multi-faceted continuum. We recognize
that each case is different, and, correspondingly, different factors
will bear differently on each outcome.
Nevertheless, we offer the framework that follows. First, the
participants in any courtroom drama must narrowly define the
context of the situation. The Marcus Dixon case provides an
example. What is the context? Teenage sex? Interracial sex?
Interracial sex in a small Southern town? How we define the
context will guide the resolution of the next two steps.
Second, what are the societal norms and expectations for the
34.
35.
36.
Delgado, supra note 2, at 2425.
Delgado, supra note 33, at 670-71.
See Baron, supra note 30, at 268; Delgado, supra note 2, at 2314-15.
3/25/2006 9:54 PM
time and place within the given context? It is here that the
importance of defining the context proves to be most significant.
Indeed, while teenage sex may be treated lightly as the product of
youthful curiosity, interracial sex carries much more societal
baggage. In considering the social norms and expectations, we
may look to unspoken mores and also other narratives that thrive
in the context. When we apply socially held expectations to the
facts of our situation, we get the majoritarian tale. The other
narratives, accordingly, become counterstories.
The third step is then to apply the narrative paradigm. Recall
that the purpose of the counterstory is to impeach the presumed
truth of the majoritarian tale.37 In criminal sentencing, both
counterstories operate in this manner. They do not compete with
the majoritarian tale “head on,” but rather attempt to undermine
its presumed truth. If either, or both, of the counterstories is
unable to do so, the majoritarian tale will control the criminal
sentencing proceeding. However, if either is able to do so, then
the majoritarian tale is displaced and either is capable of
controlling.
The counterstory that is most responsible for
displacing the majoritarian tale will likely be able to control the
criminal sentencing process.
It would thus seem that the closer the counterstory aligns
with the majoritarian tale, the greater the chance the
counterstory has of becoming the controlling narrative. To
elaborate, even if the counterstory is successful in impeaching the
presumed truth of the majoritarian tale, that alone does not
render the counterstory the dominant narrative. It must be
adopted in the criminal sentencing proceeding for this to occur.
And it must do so in the context of those cultural norms and
expectations that gave rise to the majoritarian tale in the first
place. Viewed in this light, the narrative paradigm would seem to
offer scant prospects for a judge or jury seeking to render a final
result.
But due process of narrative need not play out in such a
mechanical way, for human discretion plays a key role in criminal
Whether it is the judge, jury, prosecutor, or
sentencing.38
37.
38.
Delgato, supra note 33, at 670-71.
SANFORD H. KADISH & STEPHEN J. SCHULHOFER, CRIMINAL LAW AND ITS
PROCESSES: CASES AND MATERIALS 150-52 (7th ed., 2001).
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519
legislator, an adjudicator with a role in every criminal sentencing
proceeding has the power to wield great discretion.39 These actors
have the power to use the lessons of narrative for the betterment
of the system. And when they use that discretion to take account
of a socially unpopular or emotionally charged counterstory—one
that may stray far from the majoritarian tale—they make the
narrative paradigm that much more effective. Indeed, they allow
us a broader array of tools for challenging assumptions and
understanding what is real. For example, in the Marcus Dixon
case, narrative fairness would require that the sentencing
authority consider the town’s fears, the victim’s need for safety,
and the defendant’s desire to continue a promising young life. It
would also account for the forces that drive each. By giving due
weight to each narrative, sentencing would proceed from a fuller
and fairer perspective and possibly lead to a wider array of
outcomes. Thus, while the narrative paradigm appears to consist
of little more than an abstract set of rules, due process of
narrative regulates how real people apply those rules in actual
situations. By forcing ourselves to attend to due process of
narrative, we do ourselves, and society, a favor because only
through the clash of stories will we be able to improve the metanarrative of the trial and our understanding of society.
39.
Id.
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Fulfilling Booker’s Promise
Lynn Adelman* & Jon Deitrich**
By making the federal sentencing guidelines advisory instead
of mandatory, United States v. Booker1 marked a welcome end to a
sad chapter in American law. Although enacted with good
intentions, the United States Sentencing Guidelines constituted
“one of the great failures at law reform in U.S. history.”2 No code,
no matter how comprehensive, can identify all of the factors that
should affect a sentence, and in creating the guidelines, the
United States Sentencing Commission ignored many such factors.
Further, by making the code mandatory, Congress and the
Commission prevented courts from imposing just sentences in
many cases. After Booker, judges need no longer impose sentences
that they do not believe in.
Booker restored to judges a
meaningful role in sentencing and enabled them to craft sentences
appropriate to the circumstances of a case. At the same time, by
leaving the guidelines intact but making them advisory, Booker
provided an objective marker against which to measure a
sentence. As one observer recently put it; “in its own strange, twopart way, Booker gets us to a good result. It may lead us as close
to an ideal system as we may ever get – rules moderated by
mercy.”3
In this Article, we focus on the new system’s promise for
achieving more just sentencing results. In keeping with the
* United States District Court Judge for the Eastern District of
Wisconsin.
** Law Clerk, Judge Lynn Adelman, Eastern District of Wisconsin.
1. 125 S. Ct. 738 (2005).
2. Marc L. Miller & Ronald F. Wright, Your Cheatin’ Heart(land): The
Long Search for Administrative Sentencing Justice, 2 BUFF. CRIM. L. REV.
723, 726 (1999).
3. Robb London, Aftermath, SUMMER 2005 HARV. L. BULLETIN 6 (quoting
William Stuntz).
521
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subject of the present symposium - sentencing rhetoric - we begin
by describing the peculiar rhetoric that characterized sentencing
under the mandatory guidelines and contrast it with the richer
and more meaningful discourse that Booker makes possible. We
then outline a procedure for sentencing post-Booker, discuss the
role of the guidelines in the new system, and offer examples of
how a variety of factors can affect sentencing decisions. We
conclude with a brief discussion of the issue of sentencing
disparity.
I. PRE- AND POST- BOOKER SENTENCING RHETORIC
A member of the public who attended a sentencing proceeding
under the mandatory guideline regime might reasonably have
wondered if she had come to the right place. Although a judge and
counsel were present, they conversed in an unintelligible
language. They did not discuss the defendant’s moral culpability,
the reason that he offended, his character and background, the
likelihood that he would re-offend, the effect on the victim, or the
need to protect the public. Rather, the judge and lawyers talked
about offense levels and criminal history scores; about “intended”
versus “actual” loss amounts; about the weight of drugs that it
was reasonably foreseeable the defendant’s confederates would
possess; about whether the scheme was “sophisticated” or merely
involved “more than minimal planning.” The proceeding was
sterile, the lawyers’ arguments and the defendant’s allocution
largely irrelevant, and the sentence preordained.
As two
commentators described it:
[A]fter thirty or forty minutes of discussion in this doublespeak, the sentencing judge realizes that parties and
spectators in the courtroom are staring ahead in dazed
numbness, having lost all sense of what is happening.
That is when the judge feels bound to pause, to try to
reassure courtroom observers, in comprehensible
language, that the principal interlocutors in the
courtroom do indeed understand what they are talking
about, and that what is going on, though perhaps
unintelligible to them, is indeed honest and fair. This is
sometimes an awkward and embarrassing moment for
the judge, who must try to explain a proceeding that may
ADELMAN
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FULFILLING BOOKER’S PROMISE
523
appear as arbitrary to the judge as it does to observers in
the courtroom.
The observer who comes to the contemporary federal
courtroom to witness the dramatic passing of judgment
on a member of the community – to observe the drama of
catharsis, appeals for mercy, appeals for severity, and the
reasoned judgment that takes all of this into account – is
sorely disappointed.
That observer finds in today’s
federal courtroom precious little discussion of the human
qualities of the victim or the defendant, of the inherently
unquantifiable moral aspects of the defendant’s crime, or
of the type of sanction that would best achieve any of the
purposes of sentencing. The “purpose” of sentencing in
the new regime, he will learn, is nothing more and
nothing less than compliance with the Sentencing
Guidelines.4
Booker makes possible a more meaningful sentencing
proceeding. Although judges and lawyers must still discuss and
resolve guideline disputes, they need no longer limit themselves to
these often arcane issues. In the post-Booker world, 18 U.S.C. §
3553(a), not the guidelines, governs sentencing, and it directs
courts to consider traditional sentencing factors such as the
specific circumstances of the case, the character of the defendant,
and the need for the sentence to reflect the seriousness of the
offense and to protect the public. By returning such traditional
factors to prominence in sentencing, Booker enables judges and
lawyers to engage in a dialogue that will not frustrate the
participants or the public but rather satisfy their deepest
intuitions about what sentencing should involve.
Equally
important, after Booker, a lawyer’s arguments and a defendant’s
allocution are no longer a charade because they may actually have
an impact on a judge’s sentence.
However, Booker will not automatically produce richer
sentencing rhetoric or more meaningful sentencing proceedings;
for its promise to be fulfilled counsel will have to make persuasive
arguments under § 3553(a) and judges will have to use the
4. KATE STITH & JOSÉ A. CABRANES, FEAR
GUIDELINES IN THE FEDERAL COURTS 85 (1998).
OF
JUDGING: SENTENCING
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authority that Booker and the statute confer on them. In the
hopes of encouraging and facilitating such use, we turn now to a
discussion of post-Booker sentencing.
II. A THREE-STEP PROCEDURE FOR POST-BOOKER SENTENCING
The first two steps in sentencing after Booker are the same as
they were before Booker: courts must make a calculation under
the applicable guidelines, resolving any factual disputes necessary
to that determination, and consider any requests for departures
from the result pursuant to the Sentencing Commission’s policy
statements. However, the third step, the determination of the
actual sentence, has changed. Courts are no longer limited to the
narrow range produced by the Guidelines, but, rather, must
impose sentence based on all of the factors set forth in § 3553(a).5
Section 3553(a) directs courts to consider seven factors:
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant;
(2) the need for the sentence imposed –
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment
for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the [advisory guideline] range . . . ;
(5) any pertinent policy statement … issued by the
Sentencing Commission . . . ;
(6) the need to avoid unwarranted sentence disparities . . . ;
and
(7) the need to provide restitution to any victims of the
offense.6
5. See, e.g., United States v. Page, No. 04-CR-106, 2005 U.S. Dist.
LEXIS 19152, at *3 (E.D. Wis. Aug. 25, 2005); United States v. Beamon, 373
F. Supp. 2d 878, 880 (E.D. Wis. 2005).
6. 18 U.S.C. § 3553(a).
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525
The statute is best understood as operating sequentially.
First, courts must consider the nature and circumstances of the
offense and the history and characteristics of the defendant; in
other words, the specifics of the case before them. Second, they
must evaluate the specifics of the case in light of more general
societal needs such as ensuring that the sentence reflects the
seriousness of the offense, promotes respect for the law, provides
just punishment, affords adequate deterrence to criminal conduct,
and protects the public from further crimes of the defendant.
Finally, courts must translate their findings and impressions into
a numerical sentence. In doing so, they must consider the kinds of
sentences available for the offense (e.g., probation, home or
community confinement, prison, or some combination thereof), the
advisory guideline range, any pertinent policy statements issued
by the Sentencing Commission, and any restitution due to the
victims of the offense. In imposing a specific sentence, courts
must also consider the need to avoid unwarranted sentence
disparities among defendants with similar backgrounds convicted
of similar offenses. The ultimate directive contained in the
statute is, upon consideration of all of these factors, to impose a
sentence sufficient, but not greater than necessary, to satisfy the
This is the so-called
purposes set forth in § 3553(a)(2).7
“parsimony provision,” which holds that when more than one
sentence is reasonable in a particular case, courts must choose the
lesser.8
III. ROLE OF GUIDELINES
Based on the statutory scheme that remains after Booker’s
excision of 18 U.S.C. § 3553(b),9 courts should give the guidelines
the same weight as the other § 3553(a) factors.10 Section 3553(a)
contains no suggestion that courts should give any one of the
7. See, e.g., United States v. Peralta-Espinoza, 383 F. Supp. 2d 1107,
1109-10 (E.D. Wis. 2005); United States v. Leroy, 373 F. Supp. 2d 887, 894-95
(E.D. Wis. 2005).
8. See United States v. Carey, 368 F. Supp. 2d 891, 895 n.4 (E.D. Wis.
2005).
9. Booker, 125 S. Ct. at 756. Section 3553(b) made the guidelines
mandatory, and its excision is what renders them advisory.
10. See United States v. Ranum, 353 F. Supp. 2d 984, 986 (E.D. Wis.
2005).
ADELMAN
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seven factors greater weight than the others. Although some have
argued that the guidelines take into account the other § 3553(a)
factors and are therefore entitled to great weight, this argument is
flawed. Not only do the guidelines fail to consider all of the §
3553(a) factors, they in fact restrict or prohibit consideration of
certain of them. For instance, the guidelines fail to take into
account and generally forbid departures based on a defendant’s
age, education and vocational skills, mental and emotional
condition, physical condition (including drug or alcohol
dependence), employment record, family ties and responsibilities,
socio-economic status, civic and military contributions, and lack of
guidance as a youth.11 This prohibition cannot be squared with
the § 3553(a)(1) directive that courts consider the “history and
characteristics” of the defendant.12 The Booker Court itself
recognized that while sentencing courts still had to “consider” the
guidelines, they were free to “tailor the sentence in light of other
statutory concerns as well.”13 If the guidelines fully accounted for
all of the § 3553(a) factors, no tailoring would be necessary.
In our view, judges who declare that, as a matter of policy
they will vary from the guidelines only in unusual cases are not
only operating contrary to § 3553(a) but also disrespecting the
decision of the merits majority in Booker. Imposing sentence
based on disputed facts found by the judge under a preponderance
of the evidence standard, freed from the Rules of Evidence and
Criminal Procedure, violates the Sixth Amendment.14 Booker
saved the Guidelines only by freeing judges from their grip.
Whether a judge is bound by § 3553(b), as before Booker, or by his
own unwillingness to sentence outside the Guidelines, the result is
the same – the defendant’s right to trial by jury is violated.15
11. U.S. SENTENCING GUIDELINES MANUAL § 5H1.1-.6, .10-.12.
12. Ranum, 353 F. Supp. 2d at 986; see also United States v. Dean, 414
F.3d 725, 730-31 (7th Cir. 2005) (stating that “the defendant must be given
an opportunity to draw the judge’s attention to any factor listed in section
3553(a) that might warrant a sentence different from the guidelines sentence,
for it is possible for such a variant sentence to be reasonable and thus within
the sentencing judge’s discretion under the new regime in which the
guidelines, being advisory, can be trumped by section 3553(a), which as we
have stressed is mandatory”).
13. 125 S. Ct. at 757.
14. Id. at 756.
15. Although the Seventh Circuit has held that a sentence imposed
within a properly calculated guideline range is, on appeal, entitled to a
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527
However, for several reasons the guidelines will continue to
play an important role in sentencing. First, of the § 3553(a)
factors, the guidelines are the only ones that suggest a numerical
sentence. Although in any given case the numerical sentence
called for by the guidelines may be entirely arbitrary,16 merely by
supplying a number, the guidelines offer sentencing courts a
starting point. Second, by assigning numbers to a variety of
factors that may be relevant to sentencing, the guidelines provide
rebuttable presumption of reasonableness, e.g., United States v. Mykytiuk,
415 F.3d 606, 608 (7th Cir. 2005), this does not mean that district courts
must also operate under that presumption. Indeed, to do so would violate
Booker. See United States v. Myers, 353 F. Supp. 2d 1026, 1028 (S.D. Iowa
2005) (“To treat the Guidelines as presumptive is to concede the converse,
i.e., that any sentence imposed outside the Guideline range would be
presumptively unreasonable . . . . If presumptive, the Guidelines would
continue to overshadow the other factors listed in section 3553(a), causing an
imbalance in the application of the statute to a particular defendant by
making the Guidelines, in effect, still mandatory.”); see also United States v.
Jordan, No. 05-1296, 2006 U.S. App. LEXIS 812, at *14 (7th Cir. Jan. 13,
2006) (holding that there is no presumption of unreasonableness that
attaches to a sentence outside the range).
16. The Commission has never adequately explained how it came up with
its proposed numerical sentences. It initially said that the guidelines
mirrored past practices, but it later said that they did not. See Miller &
Wright, supra note 2, at 752. To the extent that the Commission did consider
past practice, commentators have questioned its methodology. See, e.g.,
Morris E. Lasker & Katherine Oberlies, The Medium or the Message? A
Review of Alschuler’s Theory of Why the Sentencing Guidelines Have Failed, 4
FED. SENT’G REP. 166, 167 (Nov./Dec. 1991) (“The Commission’s decision to
calculate average pre-guideline sentences by counting only incarcerative
sentences has produced sentences that are both substantially higher than
pre-guideline sentences and higher than necessary to achieve the purposes of
sentencing.”). Further, the Commission in some areas departed from past
practice and for ill-defined policy reasons decided to impose harsher
sentences. See, e.g., Joseph W. Luby, Reining in the “Junior Varsity
Congress”: A Call for Meaningful Judicial Review of the Federal Sentencing
Guidelines, 77 WASH. U. L.Q. 1199, 1221 (1999) (stating that the guidelines in
public corruption cases called for sentences considerably higher than the preguidelines average); Louis F. Oberdorfer, Lecture: Mandatory Sentencing:
One Judge’s Perspective–2002, 40 AM. CRIM. L. REV. 11, 15 (Winter 2003)
(stating that “the sentencing ranges for drug law violations were
demonstrably higher, and the resulting sentences longer, than the
pre-guidelines averages and means”). The increases called for in illegal reentry cases were particularly harsh and arbitrarily implemented. See United
States v. Galvez-Barrios, 355 F. Supp. 2d 958, 962 (E.D. Wis. 2005)
(discussing sixteen level enhancement under U.S.S.G. § 2L1.1, which was not
supported by study or research, but rather suggested by one Commissioner
and passed with little discussion).
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courts with a means of quantifying non-guideline sentences.17
Third, because Booker left intact § 3553(c), courts must continue
to provide written reasons for sentences outside the guidelines.
IV. EXAMPLES OF FACTORS THAT CAN AFFECT SENTENCES
In drafting § 3553(a), Congress used very general terms. As a
result, the statute encompasses a virtually unlimited number of
factors that can affect sentences. We offer some illustrative
examples.
A. Good Character
Although § 3553(a)(1) requires courts to consider the history
and characteristics of the defendant, and § 3661 declares that
there shall be no limit on the information concerning the
defendant’s character and background which the court may
receive and consider, the guidelines focus almost exclusively on
defendants’ past criminal activities. In other words, in setting the
imprisonment range, the guidelines consider only the bad things
about the defendant and none of the good.18 Thus, under the
mandatory guidelines, courts typically had to impose virtually the
same sentence on defendants who possessed positive character
traits as on those who did not. Fortunately, § 3553(a) recognizes
that defendants deserve to be judged based on more than their
worst moments, and after Booker courts may treat defendants as
whole people and sentence them based on all of their
characteristics.19
B. Motive
Similarly, under the mandatory guideline regime, courts had
17. See, e.g., United States v. Alexander, 381 F. Supp. 2d 884, 890 (E.D.
Wis. 2005); Galvez-Barrios, 355 F. Supp. 2d at 964.
18. See Daniel J. Freed, Federal Sentencing in the Wake of Guidelines:
Unacceptable Limits on the Discretion of Sentencers, 101 YALE L.J. 1681, 1715
(June 1992) (“Perhaps no provisions in the guidelines evoke more dismay
from the federal judiciary, the probation service, and the bar than the policy
statements [which] declare many personal characteristics of an offender to be
‘not ordinarily relevant’ to sentencing outside the applicable guideline
range.”).
19. See, e.g., United States v. Page, No. 04-CR-106, 2005 U.S. Dist.
LEXIS 19152, at *12 (E.D. Wis. Aug. 25, 2005); United States v. Ranum, 353
F. Supp. 2d 984, 990-91 (E.D. Wis. 2005).
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529
to impose the same sentence on a defendant who stole $100,000 to
pay for an operation for his sick child as on one who stole $100,000
to buy a yacht. This was so because, in white-collar cases, the
guidelines focus almost exclusively on loss amount and largely
ignore other measures of moral culpability. However, as indicated
by the above example, defendants can cause the same amount of
economic loss without being equally culpable. A person who
offends as the result of difficult personal circumstances may be
more deserving of leniency (as well as less likely to re-offend) than
a defendant who steals out of greed or opportunism.20 Similarly, a
defendant who offends without seeking substantial personal gain
or intending to harm another may be more entitled to leniency
than one who acts out of avarice or malice.21
C. Acceptance of Responsibility, Genuine Remorse and Payment of
Restitution
Under the mandatory guidelines, courts could grant a two- or
three-level reduction in offense level if the defendant timely
pleaded guilty.22 Although courts could consider a variety of
factors in determining whether to grant the reduction for
acceptance of responsibility (e.g., voluntary withdrawal from
criminal conduct, payment of restitution, surrender to authorities,
or post-offense rehabilitative efforts),23 these additional factors
were usually irrelevant. If the defendant pleaded in time, he got
the reduction.
After Booker, courts are no longer restricted by the narrow
parameters of U.S.S.G. § 3E1.1, but rather may grant additional
consideration to defendants who demonstrate acceptance beyond
that necessary to obtain a two- or three-level reduction under the
guideline. For example, a court might conclude that a defendant
who voluntarily acknowledged criminal conduct before it was
discovered and turned over all of his assets to the victim in an
effort to make restitution was entitled to a greater reduction
because such conduct was relevant to his character and to the
20.
2005).
21.
22.
23.
See United States v. Milne, 384 F. Supp. 2d 1309, 1312 n.4 (E.D. Wis.
See Ranum, 353 F. Supp. 2d at 990.
U.S. SENTENCING GUIDELINES MANUAL § 3E1.1 (2005).
Id. at § 3E1.1 cmt. n.1.
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likelihood that he would re-offend. Booker allows courts to
recognize in their sentencing practices that it is desirable to
encourage offenders to “mitigate their misconduct voluntarily,
whether by admitting it, paying restitution or making efforts to
address substance abuse, mental health or other problems that
contributed to it.”24
D. The Girlfriend Problem
Under § 3553(a) (but not the guidelines), courts may take into
consideration the reality that defendants sometimes become
involved in criminal conduct based on their relationships with
others. Courts frequently see this phenomenon at work when they
sentence women who assisted their husbands, boyfriends or male
relatives in illegal drug-related activities.25 The guidelines direct
courts to sentence women in such situations based on the drug
weight foreseeable to them regardless of whether they personally
handled such an amount, and generally fail to take into account
the often abusive or coercive relationships that led to the woman’s
involvement.
In too many cases, women are punished for the act of
remaining with a boyfriend or husband engaged in drug activity,
who is typically the father of her children. Many of these women
have histories of physical and sexual abuse and/or untreated
mental illness. Ill-informed policies spawned by the war on drugs
adversely impact children. In 1999 almost 1.5 million minor
children had an incarcerated parent, with over 65% of women
incarcerated in state prison having a minor child. The children
are often placed in the care of friends or family—often leading to
financial and emotional hardships—or end up in an overburdened
child welfare system where they are at increased risk of becoming
victims of sexual or physical abuse or neglect.26
Freed from the strictures of the guidelines, courts may factor
such matters into their sentences where appropriate.27
24. Milne, 384 F. Supp. 2d at 1312.
25. See United States v. Greer, 375 F. Supp. 2d 790, 794-95 (E.D. Wis.
2005).
26. Id. (quoting Legislative Briefing on The Girlfriend Problem,
http://sentencing.typepad.com/sentencing_law_and_policy/2005/06/legislative
_bri.html (last visited Nov. 14, 2005)).
27. U.S.S.G. § 3B1.2 allows courts to grant a two to four level reduction
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531
E. Crack/Powder Disparity
As is now notorious, both the Controlled Substances Act and
the guidelines treat one gram of crack cocaine the same as one
hundred grams of powder cocaine.28 During the mandatory
guideline regime, defendants challenged this disparity in every
However, now that the
conceivable way without success.29
guidelines are advisory, courts need no longer sentence crack
defendants based on the 100:1 ratio, which lacks any persuasive
penological or scientific justification and produces a racially
disproportionate impact.30 Indeed, courts across the country have,
in post-Booker cases, declined to follow the 100:1 ratio.31
Some commentators have suggested that it is inappropriate
for courts to address the crack/powder disparity; others warn that
deviations from the guidelines on this basis could spur Congress to
enact a legislative Booker-fix.32 However, judges cannot allow
such considerations to prevent them from doing what is just in a
particular case. The evidence in favor of narrowing or eliminating
the gap between crack and powder cocaine is overwhelming; no
one, as far as we are aware, supports the 100:1 ratio on the
merits. It would be unseemly for the courts to blindly adhere to a
sentencing scheme they know to be unjust based on the
speculation that, if they don’t, Congress may come up with
something worse.
F.
Enabling Defendants to Pay Restitution
The mandatory Guidelines generally barred courts from
for mitigating role in the offense. However, in cases where the drug weight
produces a high base offense level, this reduction is often insufficient.
28. See 21 U.S.C. 841(b)(1) (2005); 18 U.S.C. app. § 2D1.1(c) (2005).
29. See, e.g., United States v. Frazier, 981 F.2d 92, 94 (3d Cir. 1992).
30. United States v. Smith, 359 F. Supp. 2d 771, 777-82 (E.D. Wis. 2005);
see also Beamon, 373 F. Supp. 2d at 886-87 (collecting cases).
31. See, e.g., United States v. Perry, 389 F. Supp. 2d 278, 307 (D.R.I.
2005) (“The growing sentiment in the district courts is clear: the advisory
Guideline range for crack cocaine based on the 100:1 ratio cannot withstand
the scrutiny imposed by sentencing courts when the § 3553 factors are
applied.”). But see United States v. Pho, No. 05-2455, 2006 U.S. App. LEXIS
153 (1st Cir. Jan. 5, 2006) (holding that district courts cannot reject the 100:1
ratio).
32. See Pamela A. MacLean, Cracking the Code: After ‘Booker’ Judges
Reduce Crack Cocaine Sentences, NAT’L L.J. Oct. 3, 2005, at 1.
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downwardly departing in order to enhance a defendant’s ability to
pay restitution.33 However, § 3553(a)(7) directs sentencing courts
to consider the need to provide restitution to crime victims. In
some situations, this directive may justify fashioning a sentence to
enhance a defendant’s ability to pay. This is not an improper
consideration of the defendant’s “socio-economic status,” nor is it
an invitation to the rich to buy their way out of prison. Rather, in
cases in which a restitution obligation is manageable, the
defendant is employed and making a genuine effort to pay, and a
prison sentence would cause him to lose his job, the court may
consider the use of home or community confinement in order to
facilitate payment efforts.34
G.
Unusual Personal Circumstances
Not infrequently, courts encounter cases where defendants
have undergone unusual and significant experiences that may be
relevant to their sentences. Although, in theory, the mandatory
guidelines authorized departures in certain unusual cases, in
practice courts rarely granted them. Further, appellate courts
policed downward departures with unwarranted and inexplicable
zeal.35 Now that the guidelines are advisory, courts are free to
impose just sentences in cases where a traumatic experience
contributes to an offender’s misconduct. We offer two examples.
1. Michael Page
Michael Page was a forty-five-year-old man with no prior
record, a solid work history, and a stable home and family life.
One day, an acquaintance, Johnny Ray White, asked Page to drive
him to a bank so that he could make a deposit. Unbeknownst to
Page, White planned to rob the bank. White completed the crime,
returned to the car, and Page, still unaware, drove away. Soon
33. See, e.g., United States v. Chastain, 84 F.3d 321, 324-25 (9th Cir.
1996) (collecting cases).
34. See, e.g., United States v. Peterson, 363 F. Supp. 2d 1060, 1062 (E.D.
Wis. 2005).
35. See generally Paul J. Hofer & Mark H. Allenbaugh, The Reason
Behind the Rules: Finding and Using the Philosophy of the Federal
Sentencing Guidelines, 40 AM. CRIM L. REV. 19, 83 (2003) (“One of the
‘mysteries’ of the Guidelines experience is that many appellate courts have
opted to enforce them more rigidly than anyone predicted or than the
relevant statutes appear to require.”).
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533
after, a squad car with lights flashing pulled behind Page, at
which point White told him to “hit it” because he had just robbed
the bank. Instead of pulling over as he should have, Page took off.
He was subsequently arrested and charged with being an
accessory after the fact to bank robbery.36
At sentencing, Page argued that his decision to flee was in
part the product of a traumatic experience. Several years
previously, his son Michael had been involved in a high speed
chase with police during which he called 911 and stated that he
was frightened and intended to drive home. Michael then pulled
into the driveway of Page’s home, and although he was unarmed,
a police officer shot and killed him after he got out of the car.
Page witnessed the incident, saw his son die, and was left with a
profound distrust of law enforcement. He argued that when he
saw the flashing lights, he fled because he feared that the police
would harm him.37 Of course, this was an unreasonable choice.
But Page did not argue that his past trauma negated his guilt of
the offense. Rather, under these circumstances, Page’s prior
experience bore on the extent of his culpability.38
2. Quandella Johnson
Quandella Johnson had a horrific childhood. For years, her
father, a convicted sex offender, and his friends abused her
sexually, physically and emotionally.
Not surprisingly, she
developed mental health and substance abuse problems and
attached herself to abusive men. One of them involved her in
several bank robberies, which resulted in a sixty-three month
prison sentence. While in prison, Johnson made great strides,
completing drug treatment, obtaining her GED, and taking
various other classes. Upon her release, she got custody of her
children. However, she soon began to have problems, using drugs,
missing appointments and counseling sessions, and failing to pay
restitution.
These problems led to the revocation of her
supervised release and another prison sentence.39
36. United States v. Page, No. 04-CR-106, 2005 U.S. Dist. LEXIS 19152,
at *1, *8-9 (E.D. Wis. Aug. 25, 2005).
37. Id. at *8-12.
38. Id. at *10-12.
39. United States v. Johnson, No. 05-CR-80, 2005 U.S. Dist. LEXIS
15742, at *2-3 (E.D. Wis. July 25, 2005).
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The judge gave Johnson a date to report to prison but she
failed to appear, leading to the issuance of a warrant for her arrest
and a new criminal charge under 18 U.S.C. § 3146(a)(2).40
However, Johnson had not fled the jurisdiction or gone into hiding
to avoid law enforcement. Rather, she failed to report because she
had not found anyone to care for her children during her sentence.
Rather than requesting an extension until she could resolve her
child care problems, she sat in her home and cried, waiting for the
Marshal to come for her. When deputies arrived, she opened the
door, turned and placed her hands behind her back without being
ordered to do so, and was taken to jail. Based on these facts,
Johnson was entitled to sentencing consideration.
“In the
hierarchy of failure to surrender cases, a depressed mother who
stays home with her children for an extra six days around
Christmas has to rank among the least serious.”41
V. A WORD ABOUT DISPARITY
We conclude with a discussion of the issue of sentencing
disparity, which opponents of advisory guidelines most frequently
mention as the reason for restricting judicial discretion. There are
several answers to this criticism of the advisory guideline regime.
The easiest is that judges continue to impose sentences within the
guidelines in nearly sixty-two percent of all cases, only a slight
reduction from the years before Booker.42 More importantly,
though, there is no evidence that the mandatory guidelines
created sentencing uniformity in any meaningful sense.43 In fact,
under the mandatory guidelines, racial disparity in sentencing
With respect to disparity, Stith and
actually increased.44
Cabranes concluded that:
40. Section 3146(a)(2) proscribes failure to surrender for service of a
sentence.
41. Johnson, 2005 U.S. Dist. LEXIS 15742 at *11.
42. U.S. SENTENCING COMMISSION, SPECIAL POST-BOOKER CODING PROJECT
7 (Dec. 1, 2005) available at http://www.ussc.gov/bf.HTM.
43. See, e.g., Michael O’Hear, The Myth of Uniformity, 27 FED. SENT’G
REP. 249 (Apr. 2005).
44. United States v. Smith, 359 F. Supp. 2d 771, 780 (E.D. Wis. 2005)
(“Before the guidelines took effect, white federal defendants received an
average sentence of 51 months and blacks an average of 55 months. After the
guidelines took effect, the average sentence for whites dropped to 50 months,
but the average sentence for blacks increased to 71 months.”).
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535
1. Inter-judge sentence variation was not as rampant or as
“shameful” in the federal courts under the pre-Guidelines regime
as Congress apparently believed when it enacted the Sentencing
Reform Act in 1984.
2. No thorough empirical study has demonstrated a reduction
in the total amount of disparity under the Guidelines
3. While reduction of inter-judge disparity is a worthwhile
goal for sentencing reform, it is a complex goal, and a myopic focus
on this objective can result in a system that too often ignores
other, equally important goals of a just sentencing system.
Uniformity can itself be “unwarranted”: when unprincipled, blind
uniformity itself promotes inequality.
4. Important sources of disparity remain in the Guidelines
regime, some acknowledged and others hidden from view. In
particular, the exercise of the prosecutorial function is, despite the
efforts of both the Sentencing Commission and the Department of
Justice, inevitably a wellspring of disparate treatment. This does
not mean that prosecutorial discretion should be suppressed, but
rather that prosecutors should exercise discretion in the open,
where it can be observed and, if necessary, checked by judges.45
Therefore, rather than worshiping the false idol of uniformity,
we should focus on doing justice in individual cases. The regime
now in place gives judges guidelines which are just that – guides
in the exercise of discretion. Judges need not sentence different
people the same just because their offense levels and criminal
history scores call for identical terms. Further, because judges are
sworn to uphold the law and will conscientiously fulfill their duty
to protect the public when necessary, the notion that without
mandates judges will jeopardize public safety is as insulting as it
is unsupported. And, appellate review remains available for any
sentence that is demonstrably unreasonable, either because it is
too high or too low. Moreover, reinstating mandatory guidelines
will do little to eliminate disparity as it exists now. Rather, its
effect will be to transfer sentencing authority from judges to
prosecutors, whose charging decisions, rather than the offender’s
conduct and background, will drive the sentence.
Finally, we note that there are many forms of disparity in this
country. Criminal defendants are more likely to be poor and
45.
STITH & CABRANES, supra note 4, at 106.
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uneducated, unemployed, come from broken homes, have a history
of childhood abuse or neglect, and suffer from mental health or
substance abuse problems.46 Perhaps the national discussion on
crime control and correctional policy should focus more on these
disparities, which antedate the commission of crime, rather than
on ensuring that everyone gets the same amount of time in prison
after the fact.
VI. CONCLUSION
Under our system of justice, judges, not prosecutors, are
Booker represents a
supposed to sentence defendants.47
tremendous advance because for the first time in almost twenty
years, courts are allowed to fulfill their sentencing
responsibilities. However, the courts and counsel will have to
work hard to ensure that Booker’s promise is fulfilled.
46. See, e.g., Daniel P. Mears, Health Law in the Criminal Justice System
Symposium: Mental Health Needs and Services in the Criminal Justice
System, 4 HOUS. J. HEALTH L. & POL’Y 255, 268-69 (2004) (“Jail and prison
populations typically have higher rates of poverty and substance abuse.”);
Michael Tonry, Race and the War on Drugs, 1994 U. CHI. LEGAL F. 25, 47
(1994) (“Most felony defendants, whatever their race, tend to be poor,
ill-educated, un- or underemployed, and not part of a stable household.”).
47. See Lynn Adelman & Jon Deitrich, AG’s Misguided Proposals, NAT’L
L.J., Sept. 19, 2005, at 30.
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Indecent Standards:
The Case of U.S. versus Weldon
Angelos
Eva S. Nilsen*
“[W]hether or not a punishment is cruel and unusual
depends, not on whether its mere mention ‘shocks the
conscience and sense of justice of the people,’ but on
whether people who were fully informed as to the purposes
of the penalty and its liabilities would find the penalty
shocking, unjust, and unacceptable.”
- Justice Thurgood Marshall in Furman v. Georgia1
“While the sentence appears to be cruel, unjust and
irrational, in our system of separated powers Congress
makes the final decisions as to appropriate criminal
penalties.”
- Judge Paul Cassell in United States v. Angelos2
* Associate Clinical Professor, Boston University School of Law; J.D.
1977, University of Virginia Law School. © 2005. Many thanks to the
Symposium participants for their critique and conversation; thanks also to
Amy Bitterman, Boston University School of Law, Juris Doctor candidate
(2007) for her superb research assistance.
1. 408 U.S. 238, 361 (1972).
2. 345 F. Supp. 2d 1227, 1230 (D. Utah 2004).
537
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I. INTRODUCTION
In today’s highly punitive culture, perhaps Weldon Angelos’
fifty-five-year sentence does not seem unusual. He’s a 25-year-old
man who was convicted in December 2003 of selling marijuana,
possessing firearms while drug dealing, and money laundering.3
The facts proven at trial are that on three occasions in June and
July, 2002, Angelos sold eight one-ounce bags of marijuana for
$350 each to a government informant.4 The purchaser testified
that a firearm was visible during two of these drug sales.5 Police
seized another gun from Angelos’ home five months later pursuant
to a warrant.6 At no time was he accused of using or threatening
to use these weapons.7
If Angelos had been charged and convicted in a state court in
Utah rather than a federal court in Utah, his sentence would most
likely have been between four and seven years.8 His sentence also
would have been much less if he had accepted the prosecutor’s
pre-trial offer of fifteen years in exchange for a guilty plea. At the
time of the plea offer Angelos faced only one mandatory gun
charge. Initially, he refused the offer, but then tried,
unsuccessfully, to reopen plea discussions after the prosecutor
informed him of the additional firearms indictments that he had
secured arising from the same set of facts. Angelos went to trial,
was convicted, and, on November 16, 2004, Judge Paul Cassell
imposed the mandatory sentence of fifty-five years. This was the
least severe sentence the judge could have rendered under the
federal firearms enhancement statute, 18 U.S.C. § 924(c).9 With
3. Id. at 1231.
4. Id.
5. Id.
6. Id.
7. Id. at 1258.
8. See id. at 1243, 1259; Pamela Manson, Utah Federal Judge Takes
Closer Look at Stiff Minimum Mandatory Terms, THE SALT LAKE TRIBUNE,
Sept. 15, 2004, at A1.
9. See 18 U.S.C. § 924(c) (2000). “Whoever, during and in relation to
any crime of violence or drug trafficking crime (including a crime of violence
or drug trafficking crime which provides for an enhanced punishment if
committed by the use of a deadly or dangerous weapon or device) for which he
may be prosecuted in a court of the United States, uses or carries a
firearm . . . shall, in addition to the punishment provided for such crime of
violence or drug trafficking crime,” be sentenced to imprisonment for five
years. Id. § 924(c)(1)(A). If the firearm is a “short-barreled rifle, short-
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INDECENT STANDARDS
539
no opportunity for parole, this is essentially a life sentence. If he
survives, Weldon Angelos will be eighty years old when he is
released.
What’s so special about this case? There are many equally
long sentences imposed daily in federal and state courts
throughout the United States.10 However, even in these harsh
times it is unusual for a first offender, convicted of a crime not
involving violence or the threat of violence, to receive a life
sentence. The sentence in Angelos is an anomaly, and Judge
Cassell’s response to having to impose the sentence makes it
special. He balked at doing what seemed to him outrageous and
unfair and set this case on an unusual procedural journey. He
called this sentencing his most difficult moment as a judge,11 but
he did more than express his pain and frustration. Judge Cassell
reached out to the jury, the legal community and beyond in an
effort to resolve the conflict between his sense of justice and the
law. In the end he did as many others who are equally disturbed
by the straightjacket of federal sentencing have done: he
barreled shotgun, or semiautomatic assault weapon, to imprisonment for ten
years, and if the firearm is a machinegun, or a destructive device, or is
equipped with a firearm silencer or firearm muffler, to imprisonment for
thirty years. Id. § 924(c)(1)(B). In the case of his second or subsequent
conviction under this subsection, such person shall be sentenced to
imprisonment for twenty-five years, and if the firearm is a machinegun, or a
destructive device, or is equipped with a firearm silencer or firearm muffler,
to life imprisonment without release. Id. § 924(c)(1)(C). Notwithstanding any
other provision of law, the court shall not place on probation any person
convicted of a violation of this subsection, nor shall the term of imprisonment
imposed under this subsection run concurrently with any other term of
imprisonment including that imposed for the crime of violence or drug
trafficking crime in which the firearm was used or carried. Id. § 924 (c)(1)(D).
“For purposes of this subsection, the term ‘drug trafficking crime’ means any
felony punishable under the Controlled Substances Act (21 U.S.C. 801 et
seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et
seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et
seq.).” 18 U.S.C. § 924(c)(2). “For purposes of this subsection the term ‘crime
of violence’ means an offense that is a felony and (A) has as an element the
use, attempted use, or threatened use of physical force against the person or
property of another, or (B) that by its nature, involves a substantial risk that
physical force against the person or property of another may be used in the
course of committing the offense.” Id. § 924(c)(3).
10. See generally David M. Zlotnick, Shouting into the Wind: District
Court Judges and Federal Sentencing Policy, 9 ROGER WILLIAMS U. L. REV.
645 (2004).
11. Angelos, 345 F. Supp. 2d at 1261.
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sentenced Angelos to the mandatory minimum of fifty-five years
in prison.12
The Tenth Circuit affirmed Weldon Angelos’ sentence.13 That
Court did not seize the opportunity presented by Judge Cassell to
expand Eighth Amendment discourse.14 Furthermore it rejected
Judge Cassell´s interpretation of Harmelin v. Michigan and his
findings under the Harmelin standard.15 Weldon Angelos was not
re-sentenced to a term proportionate to his crimes.16
This case has broader import, however, than the attempt to
12. See Interview by PBS Frontline with Judge Robert Sweet, FRONTLINE
(n.d.),
http://www.pbs.org/wgbh/pages/frontline/shows/snitch/procon/sweet.
html (last visited Jan. 16, 2006). Some judges have quit the bench because
they could no longer abide by the sentencing laws. Examples include: Judge
Lawrence Irving, as reported by Allen Abrahamson, U.S. Judge to Quit; Cites
Sentencing Guidelines, L.A. TIMES, Sept. 27, 1990, at A3; Judge Paul
Magnuson, as reported by Lucy Quinlivan, Chief Judge Leaving Best Job in
World, ST. PAUL PIONEER PRESS, June 18, 2001, at A1; Judge John S. Martin,
as reported by Seth Stern, Federal Judges Rebel Over Limits to Sentencing
Power, CHRISTIAN SCIENCE MONITOR, Jul. 8, 2003 at Op. 2.
13. United States v. Angelos, 433 F.3d 738, 754 (10th Cir. 2006).
14. See id. at 738-54.
15. See id. The Harmelin standard was set forth in Harmelin v.
Michigan. 501 U.S. 957 (1991). The Harmelin Court held that a life sentence
without the possibility of parole for possession of a large quantity of cocaine
was not a violation of the Eighth Amendment. Id. at 961, 994. Justice
Kennedy relied on the gross proportionality test articulated in Solem v. Helm,
which asserted that “as a matter of principle . . . a criminal sentence must be
proportionate to the crime for which the defendant has been convicted.” 463
U.S. 277, 290 (1983) (cited by Harmelin, 501 U.S. at 1004-05). Harmelin’s
threshold test consists of line-drawing regarding the seriousness of a crime
and the culpability of the offender. Harmelin, 501 U.S. at 976. Judge Cassell
found this an easy test for Angelos: 1) the lack of violence or force in
Angelos’s crimes despite his carrying a gun, 2) the fact that he sold
marijuana, a drug which despite its illegality is not generally associated with
violence or serious bodily harm, and 3) Angelos’s lack of a criminal record.
Angelos, 345 F. Supp. 2d at 1257-58. As noted above, the Supreme Court has
said that most of those serving sentences will not survive the threshold test
of gross disproportionality. Harmelin, 501 U.S at 960. The Court gave scant
guidance when it said, for example, that a life sentence for a parking meter
violation is grossly disproportionate. Rummel v. Estelle, 445 U.S. 263, 274
n.11 (1980). Before Harmelin, the Supreme Court’s modern Eighth
Amendment test was articulated in Solem. 463 U.S. at 277.
16. See infra text accompanying note 138 for a brief description of the
Tenth Circuit’s decision on appeal, which occurred just prior to publication.
Notwithstanding the Tenth Circuit’s decision, the analysis and commentary
set forth by this article remain useful should Weldon Angelos undertake
another appeal, and remain useful to other defendants similarly situated to
Angelos.
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541
right the wrong done to Weldon Angelos. Judge Cassell’s
ambitious approach to the restrictions of mandatory sentences
shows that judges can generate valuable data on evolving
standards of decency and thereby give content to the Eighth
Amendment. Judge Cassell’s actions may augur a new wave of
judicial decision-writing in which judges record their observations
about evolving sentencing norms and in so doing expand the postBooker sentencing discussion to include mandatory minimums.17
II. PRE-SENTENCE INQUIRY
At the time of Angelos’ trial, Judge Cassell had been on the
bench approximately two-and-a-half years. Prior to his
appointment to the District Court he was a law professor at the
University of Utah College of Law,18 where he accumulated an
extensive scholarly record.19 He also spent a number of years
prosecuting cases in the Justice Department after having spent
two terms working as a law clerk to Supreme Court Justice
Warren Burger and then D.C. Circuit Court of Appeals Judge
Antonin Scalia.20 Cassell has a reputation for being scholarly,
conservative and practical.21
During the period between verdict and sentencing in Angelos,
Judge Cassell did two unusual things. First, he ordered the
parties to submit briefs on the application and constitutionality of
the particular mandatory minimum sentencing laws.22 This move
17. United States v. Booker, 543 U.S. 220, 226-27 (2005) (finding that the
Guidelines unconstitutionally invaded the province of the jury by permitting
judges to find sentencing enhancement facts by a preponderance of the
evidence and making the Guidelines mandatory).
18. Biography of Paul G. Cassell, U.S. DEPT OF JUSTICE OFFICE OF LEGAL
POLICY, Feb. 20, 2004 (last updated), http://www.usdoj.gov/olp/cassellbio.htm
(last visited Jan. 16, 2006).
19. See, e.g., Paul G. Cassell, The Paths Not Taken: The Supreme Court’s
Failures in Dickerson, 99 MICH. L. REV. 898 (2001); Paul G. Cassell, Too
Severe?: A Defense of the Federal Sentencing Guidelines (And a Critique of
Federal Mandatory Minimums), 56 STAN. L. REV. 1017 (2004).
20. Biography of Paul G. Cassell, supra note 18; Resume of Paul G.
Cassell, U.S. DEPT. OF JUSTICE OFFICE OF LEGAL POLICY, Feb. 20, 2004 (last
updated), http://www.usdoj.gov/olp/cassellresume.htm (last visited Jan. 16,
2006).
21. See Support of Paul G. Cassell, U.S. DEPT OF JUSTICE OFFICE OF LEGAL
POLICY, Feb. 20, 2004 (last updated), http://www.usdoj.gov/olp/cassell
support.htm (last visited Jan. 16, 2006).
22. See 18 U.S.C. § 924(c); Order Directing Briefing on Application and
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was unexpected as there appeared to be little sentencing leeway
under the federal law. The issues flagged by the Court for briefing
can be summarized as follows:
1. Is there a conflict between the general sentencing
provision, 18 U.S.C. § 3553(a) that prescribes sentences that are
not greater than necessary to insure justice, deterrence and public
protection, and mandatory, consecutive sentences under 18 U.S.C.
§ 924(c), and if so how should it be resolved?23
2. Are the mandatory minimum sentences in this case
violative of the Eighth Amendment’s prohibition against cruel and
unusual punishment, taking into consideration Harmelin v.
Michigan’s holding that the Eighth Amendment forbids sentences
that are grossly disproportionate to the crime,24 and Ewing v.
California’s reiteration of the Harmelin test in the context of
California’s three-strikes law?25
3. Are the mandatory minimums violative of the prohibition
against irrational classifications under the Fourteenth
Amendment’s Equal Protection Clause based on what others in
the same Guidelines category (I) would receive?26 Judge Cassell
listed a number of examples:
a. Angelos will serve a prison term of at least 738 months.27
b. A major drug kingpin whose drug distribution causes death
or serious bodily injury will serve a term of no more than 293
months.28
c. An aircraft hijacker will serve no more than 293 months,
and fewer months will be served by a racist assaulter, a terrorist
who detonates a bomb, a spy, a second degree murderer, a
kidnapper, someone who assaults with intent to kill and inflicts
permanent or life threatening injuries, a rapist, a child
Constitutionality of Mandatory Minimum Sentences at 10, United States v.
Angelos, 345 F. Supp. 2d 1227 (D. Utah 2004) (02-CR-708) [hereinafter Order
Directing Briefing].
23. Order Directing Briefing, supra note 22, at 2-3.
24. Harmelin v. Michigan, 501 U.S. 957, 1001 (1991).
25. Order Directing Briefing, supra note 22, at 3-5; Ewing v. California,
538 U.S. 11, 30 (2003) (upholding twenty-five years to life sentence under
CAL. PENAL CODE § 667(b) (West 1999)).
26. Order Directing Briefing, supra note 22, at 5.
27. Id. This is a combined sentence of 660 months for the firearms
charges and 78 months (6.5 years) for the marijuana sales.
28. Id.
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pornographer, and a saboteur.29
Judge Cassell also asked whether it should matter that
Angelos would receive a much shorter sentence if he were being
sentenced in any of the fifty states.30
Cassell’s other unusual pre-sentencing move was to send
former Angelos trial jurors a questionnaire entitled “Juror
Questionnaire Regarding Weldon Angelos Sentencing.”31 He said
“[T]he sentencing of Mr. Angelos is scheduled for March 26, 2004,
at 2:30 in my court. I am trying to gather as much information as
possible in order to determine the appropriate sentence in the
matter. It occurred to me that you had heard all of the evidence in
the case and might have informed views on the subject.”32 He
assured them that any response was purely voluntary, promised
anonymity, and stated that the poll would be valuable as a
reflection of the informed thoughts of the people of Utah on the
seriousness of the crime and possible penalties.33 Nine of the
twelve former jurors responded to the questionnaire expressing
divergent views about the appropriate sentence, with the average
suggested term of years between fifteen and eighteen years. 34
III. FORMER JUDGES AND PROSECUTORS WEIGH IN
Judge Cassell was soon to receive even more information for
the upcoming sentencing of Weldon Angelos. Former federal judge
John Martin led an amicus campaign on behalf of Weldon
Angelos.35 Twenty-nine former federal judges and prosecutors
29. Id. at 5-9.
30. Id. at 9.
31. Juror Questionnaire Regarding Weldon Angelos Sentencing, United
States v. Angelos, 345 F. Supp. 2d 1227 (D. Utah 2004) (02-CR-708) (on file
with author) [hereinafter Juror Questionaire].
32. Id. Judge Cassell asked the jurors to write down a term of years that
they personally believed Angelos deserved to serve. Id. To assist them, he
explained that due to truth in sentencing law, Angelos would serve the entire
sentence. Id. Additionally, he informed them that Angelos had no adult
criminal record and one minor juvenile adjudication. Id.
33. Id.
34. The results of Judge Cassell’s questionnaire asking jurors’ opinions
about Angelos’s deserved sentence were as follows: 5, 5-7, 10, 10, 15, 15, 1520, 32, and 50. See Letter from Judge Cassell to Attorneys Lund and Mooney
(Feb. 7, 2005) (on file with author).
35. Brief of Amici Curiae Addressing the Constitutionality of Mandatory
Minimum Sentences Under Federal Law, United States v. Angelos, 345 F.
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signed the amicus brief asking Judge Cassell to find, among other
things, that the mandatory minimum sentence of fifty-five years
was cruel and unusual punishment.36
Amici did not argue that mandatory sentencing is a per se
violation of the Eighth Amendment. Rather, they argued, the fiftyfive year sentence was both grossly disproportionate to Mr.
Angelos’ crimes and contrary to society’s evolving standards of
decency.37 The amicus analysis relied on the Supreme Court’s
recognition that there is a proportionality requirement for noncapital as well as for capital offenses consisting of a three-part test
that courts must conduct. 38 The test requires a defendant to pass
a threshold that measures the sentence against the seriousness of
the crime and the culpability of the defendant.39 If successful, and
it has been stated on several occasions that only rarely will a
defendant be so fortunate,40 the court conducts inter- and intrajurisdictional sentence comparisons. 41 Amici argued that Angelos
met Harmelin’s threshold test because he had no prior adult
criminal record, and the conduct for which he was convicted
Supp. 2d 1227 (D. Utah 2004) (No. 02-CR-708) [hereinafter Brief of Amici
Curiae].
36. The signatories of this amicus brief included former Attorney General
Nicholas Katzenbach, former Third Circuit Chief Judge John Gibbons, former
District Judge John Martin, attorneys Harry Rimm and Jeffrey Sklaroff, and
former U.S. Attorney Robert J. Cleary. Id.
37. Id. at 4. In addition to the Eighth Amendment claim, the authors
argued that the mandatory sentence violated due process, the separation of
powers doctrine, and the Sixth Amendment because under this system the
prosecutors were allowed to pick the charges, make offers of leniency, further
increase the charges after the offer was refused and stack the sentences. Id.
at 15, 18-19, 24. This meant that Angelos could get what is effectively a life
sentence for conduct that was much less serious than many crimes of violence
which carried lighter sentences.
38. Ewing v. California, 538 U.S. 11, 20, 22 (2003); Harmelin v.
Michigan, 501 U.S. 957, 997, 1004 (1991) (Kennedy, J., concurring and
acknowledging that Solem v. Helm considered three factors to determine
disproportionality).
39. Harmelin, 501 U.S. at 1005 (Kennedy, J., concurring and citing
Solem v. Helm for threshold requirement).
40. Ewing, 538 U.S. at 21, 30; Harmelin, 501 U.S. at 960, 963, 1001,
1005.
41. Ewing, 538 U.S. at 36 (Breyer, J., dissenting but agreeing that the
sentence at issue should be compared to other sentences if the claim satisfies
the threshold requirement); Harmelin, 501 U.S. at 1005 (Kennedy, J.,
concurring).
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involved neither the use nor the threat of violence.42 In measuring
the seriousness of Angelos’ crimes, Amici considered the jury’s
assessment, the ABA standards on punishment,43 and the
Kennedy Commission recommendation urging federal and state
repeal of mandatory minimum sentences.44
Amici also urged the Court, when looking at crime severity, to
consider that the drug sold here was marijuana, not cocaine, a
drug which has associated harms that influenced the Court in
Harmelin.45 This case stands alone, they argued, in its severity
and its injustice. Amici urged Judge Cassell to do both the just
and legally correct thing and decline to sentence Angelos to the
mandatory term because it violated the Eighth Amendment and
because the prosecutor misapplied 28 U.S.C. § 924(c).46
III. SENTENCING
On November 16, 2004, Judge Cassell sentenced Weldon
Angelos to fifty-five years on the three firearms charges – the
mandatory sentence – and one day on all charges related to the
three marijuana sales.47 The one-day sentence was permissible
because these charges were covered under the U.S. Sentencing
Guidelines which, since Booker,48 were no longer mandatory.49 The
42. Brief of Amici Curiae, supra note 35, at 9-10.
43. See ABA STANDARDS FOR CRIMINAL JUSTICE: SENTENCING 18-2.4, 183.21(b) (3d ed. 1994). “A legislature should not prescribe a minimum term of
total confinement for any offense.” Id. at 18-3.21(b). The authors state 1) that
sentences should be rationally related to the gravity of the underlying
offense, 2) sentences should be no more severe than necessary to achieve
their purpose, id. at 18-2.4 cmt., and 3) a minimum mandatory punishment
generally should not be the equivalent of a life sentence, id. at 18-3.21(b) cmt.
44. See
ABA
Justice
Kennedy
Commission
Reports
with
Recommendation to the ABA House of Delegates (A.B.A. 2004) (reports and
recommendations to the House of Delegates regarding criminal punishment).
Justice Kennedy’s speech several years ago urging repeal of mandatory
sentences based on their unjust application throughout the criminal justice
system led to the formation of the ABA Kennedy Commission which issued a
number of recommendations to lessen the harshness of current sentencing.
Id. at 1, 3-4. Among these is the recommendation to abolish mandatory
minimum sentencing and return sentencing discretion to judges. Id. at iii.
45. Brief of Amici Curiae, supra note 35, at 9.
46. Id. at 2.
48. United States v. Booker, 125 S. Ct. 738, 743 (2005).
49. Angelos, 345 F. Supp. 2d at 1260 (citing United States v. Croxford,
324 F. Supp. 2d 1230, 1248 (D. Utah 2004)).
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judge acknowledged that were it not for the fifty-five-year (638
months) mandatory sentence he would have given Angelos a
sentence of 97-121 months (8-10 years) for his drug and firearms
charges.50
Judge Cassell’s sixty-five page opinion is remarkable in its
legal and factual detail. He addressed two constitutional claims:
first that the § 924(c) charges created irrational classifications
under the Equal Protection Clause, and, second, that a fifty-fiveyear minimum mandatory sentence was excessive punishment
under the Eighth Amendment.51 He harshly criticized the
prosecutor’s choice to stack the firearms charges in one
prosecution of § 924(c), stating that Congress had originally
intended this to be a standard recidivist provision, requiring a
conviction before a second enhanced sentence can be given.52
A. Equal Protection Claim53
The gist of the equal protection argument is that sentencing
Angelos under § 924(c) to what amounts to a life sentence is
irrational as applied to him, because it leads to unjust and
undeserved punishment and creates irrational distinctions
between offenses and offenders. The court agreed that, in light of
the U.S. Sentencing Guidelines, the jury’s opinion, the probation
officer’s assessment of the probable sentence under Utah state
laws, the laws of the fifty states, and the practice of other federal
jurisdictions, § 924(c) resulted in an irrational sentence for
Weldon Angelos.54 Judge Cassell then examined whether § 924(c)
created irrational classifications between offenses and offenders.
50. Id. at 1241.
51. Id. at 1243-52, 1256-59.
52. Id. at 1234.
53. Judge Cassell’s opinion and Angelos’s brief address the Equal
Protection arguments with as much vigor as they do the Eighth Amendment
arguments. For purposes of this paper I have chosen to focus on the Eighth
Amendment mainly because the strength of the Equal Protection argument
lies in its characterization of the § 924(c) sentence as unjust and irrational
punishment when compared to other offenses. This argument involves line
drawing regarding punishment severity in much the same way as does the
proportionality based argument. See id. at 1243-1248; See also Brief of
Appellant Weldon Angelos at 43, United States v. Angelos, 433 F.3d 738,
2006 WL 41211 (10th Cir. Jan. 9, 2006) (No. 04-4282) [hereinafter Brief of
Appellant Angelos].
54. Angelos, 345 F. Supp. 2d at 1241-43.
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While Angelos’ likely maximum sentence was 738 months, a major
drug kingpin who killed someone could get 293 months, an
aircraft hijacker could receive 293 months, one who rapes a child
could receive 135 months; a second degree murderer could receive
168 months, and a marijuana dealer who shoots an innocent
person during a drug transaction could receive 146 months.55
The government argued that the mere fact of Angelos’
possession of a gun indicated that the threat of violence was
present.56 The court agreed but asked whether it was rational to
punish a person who might shoot someone with a gun he carried
far more harshly than the person who actually does shoot or harm
someone.57
The government conceded that some of the offenses cited by
the Court were indeed more serious that those committed by Mr.
Angelos but argued that it was wrong to compare Angelos’ three
gun offenses with only one other serious crime.58 The Court
countered by comparing Angelos’ sentence with the same list of
crimes, times three.59 This meant that Angelos’ sentence would be
longer than that of any three-time criminal “[w]ith the sole
exception of a marijuana dealer who shoots three people.”60 His
sentence, however, would be longer than that of a marijuana
dealer who shoots two people.61 As appellate counsel for Angelos
concluded, “the difference between Mr. Angelos’ sentence and
those for exceptionally violent federal offenders is both stark and
disturbing.”62
The Court also discussed whether the statute was irrational
because it failed to distinguish between first offenders and
recidivists.63 However, this failure to distinguish was upheld in
Deal v. United States which found that the phrase “subsequent
55. Id. at 1245 (table 1 Comparison of Mr. Angelos’ Sentence with
Federal Sentences for Other Crimes). These comparisons troubled Judge
Cassell prompting one of his pre-sentence queries to counsel.
56. This discussion mirrors concerns raised by Judge Cassell in the presentence period. See Order Directing Briefing, supra note 22.
58. Id. at 1246.
59. Id.
60. Id.
61. Id.
62. Brief of Appellant Angelos, supra note 53, at 27.
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conviction” allowed a defendant to be given the enhanced
punishment for a second conviction (or more) resulting from
offenses tried together.64 The court said there was no requirement
that the second or subsequent crime happened after the first
conviction.65 This so-called “count-stacking” has been sharply
criticized by lawyers, academics and members of the U.S.
Sentencing Commission.66 Judge Cassell opined that the
deterrence rationale generally given for recidivist statutes is not
served by a statute that permits multiple consecutive sentences
without offering an opportunity to the guilty party to be
deterred.67
64. Deal v. United States, 508 U.S. 129, 135 (1993). Deal raised an
ambiguity in the statute rather than a specific Eighth Amendment challenge
to § 924(c). Id. at 131. What is unusual about this statute is that it permits
the sentences for multiple events to be stacked as consecutive sentences in a
single prosecution. In Deal multiple robberies occurring on separate days
were tried in one proceeding. Id. at 130. The Supreme Court said there was
no requirement that enhancements be charged at separate judicial
proceedings. Id. at 137. The Court found no ambiguity, saying there was no
requirement that the previous sentence be final before another offense could
be charged. Id. at 132, 135. The Court did not, however, consider facts such
as are present in Angelos, that is, whether stacking charges that resulted in
multiple twenty-five-year sentences for a first offender violated the Eighth
Amendment.
65. Id. at 135.
66. See John R. Steer, Member and Vice Chair of the U.S. Sentencing
Commission, Statement Before the ABA Justice Kennedy Commission (Nov.
13, 2003). “[C]onsider the effects if prosecutors pursued every possible count
of 18 U.S.C. § 924(c) . . . . The statute provides for minimum consecutive
sentence enhancements of 25 years to life for the second and subsequent
convictions under the statute, even if all the counts are charged, convicted,
and sentenced at the same time. Pursuing multiple § 924(c) charges at the
same time has been called ‘count stacking’ and has resulted in sentences of
life imprisonment (or aggregate sentences for a term of years far exceeding
life expectancy) for some offenders with little or no criminal history.” Id.
67. Judge Cassell, in his sentencing opinion, states that “[l]ast year in
Ewing v. California, the Supreme Court upheld a twenty-five to life sentence
under California’s three-strikes law. While defendant Ewing’s third offense
was merely stealing $399 worth of golf equipment, the controlling opinion
noted that the policy of the law was to ‘incapacitat[e] and deter[] repeat
offenders who threaten the public safety. The law was designed ‘to ensure
longer prison sentences and greater punishment for those who commit a
felony and have been previously convicted of serious and/or violent felony
offenses.’” In the end, the Court concluded that Ewing’s sentence was
justified ‘by his own long, serious criminal record [including] numerous
misdemeanor and felony offenses . . . nine separate terms of incarceration . . .
and crimes [committed] while on probation or parole.’” Angelos, 345 F. Supp.
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Judge Cassell strongly criticized other aspects of the
government’s handling of this case. He criticized the practice of
seeking superseding indictments after the defendant refused to
accept an offered plea bargain.68 He found flaws in the
government’s rationale for charging Angelos with a mandatory
fifty-five-year penalty after it had offered him a deal for fifteen
years, noting that Angelos became neither more dangerous nor
more blameworthy during the negotiation process.69 He also
pointed out that seeking such a harsh sentence was clearly the
prosecutor’s choice and not one dictated by the Department of
Justice.70 Nevertheless, the court reluctantly stated that since the
punishment is up to Congress, it survives rational basis scrutiny.
“While it imposes unjust punishment and creates irrational
classifications, there is a ‘plausible reason’ for Congress’ action.”71
B. Eighth Amendment Claim
The court was nearly persuaded by the Eighth Amendment
argument. Judge Cassell found the mandatory sentence grossly
disproportionate to that deserved based on typical factors used by
courts to determine the seriousness of a crime and the culpability
of its perpetrator: his lack of prior record, his failure to use or
threaten violence in committing his crimes, the nature of the
crimes, and the U.S. Sentencing Guidelines sentence for these
crimes (which would be applicable – as advisory only – if there
2d. at 1249 (quoting Ewing, 538 U.S. at 15, 30 (quoting CAL. PENAL CODE §
667(b) (West 2005)).
69. Id. at 1254-56.
70. In support of this he cites the “Ashcroft memo” which demanded that
prosecutors seek higher sentences with greater consistency. Id. at 1253. Yet
even under these stringent Justice Department guidelines the Angelos
prosecution stands out as being unduly harsh inasmuch as the memo was
directed to crimes of violence, not drug crimes, especially where no weapon
was used or threatened.
71. Id. at 1256. Query whether the “any plausible reason” test would
allow any punishment whatsoever, since, of course, one can always come up
with a plausible reason. If this is truly the test, what role does the court play
as guardian of the Constitution? Appellate counsel makes this point,
criticizing Judge Cassell’s “undue deference to an irrational legislative
scheme that implicates the judicial branch’s core duty of criminal sentencing
and entails incomparable consequences for the individual defendant.” Brief of
Appellant Angelos, supra note 53, at 8.
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were no mandatory minimum sentence).72 The court then
considered the remaining two steps in the Harmelin test:
comparison to penalties for other offenses in the court’s
jurisdiction, and comparisons to sentences for the same crimes in
other jurisdictions. The court concluded that “[h]aving analyzed
the three Harmelin factors, [it] believes that they lead to the
conclusion that Mr. Angelos’ sentence violates the Eighth
Amendment.”73
Why, then, after all this careful parsing of the law and facts,
and after concluding repeatedly that this punishment was cruel,
extremely unusual, undeserved and irrational, does the Court
refuse to find this sentence unconstitutional? The court got stuck
on a 1983 Supreme Court case, Hutto v. Davis,74 that, while not
specifically overruled, has dubious viability today.75 The Court
reasoned that if a pair of twenty-year consecutive sentences for
possessing nine ounces of marijuana was not cruel and unusual,
as Hutto held, then neither was the mandatory sentence for
Angelos.76 Indeed several justices referred to it recently as still
part of Eighth Amendment doctrine.77 Still, the decision to rely on
Hutto was a surprise. Perhaps, as a relatively recent judicial
appointee, Judge Cassell felt obliged to defer to the Tenth Circuit
for a clarification of Hutto’s relevance to Eighth Amendment
doctrine. Or perhaps Judge Cassell simply was unable to choose
the morally clear path when faced with a clear conflict between
justice and the law.
Cassell’s unusual post-sentencing actions show just how
strongly he felt about Angelos’ case. After sentencing Angelos to
fifty-five years in prison, he stated that he “fe[lt] ethically
obligated to bring this injustice to the attention of those who are
72. Id. at 1257-58.
73. Id. at 1259.
74. Hutto v. Davis, 454 U.S. 370, 375 (1982) (Powell, J., concurring and
citing majority holding that two consecutive twenty-year sentences for
marijuana possession did not violate the Eighth Amendment).
75. Judge Cassell himself notes that Hutto has been narrowed by Solem
v. Helm and later Eighth Amendment cases, but has not been overruled.
Angelos, 345 F. Supp. 2d. at 1259.
76. Id. at 1259-60.
77. Harmelin v. Michigan, 501 U.S. 957, 997-98 (1991) (Kennedy, J.,
concurring in part and concurring in the judgment).
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in a position to do something about it.”78 In support of this, he
noted that “this is one of those rare cases where the system has
malfunctioned.”79 He sought relief for Angelos by communicating
his recommendation for executive clemency to the President
through the office of the Pardon Attorney.80 He asked the
President to commute the sentence to no more than eighteen
years, which was the average recommendation of the jurors.81 By
his actions, Judge Cassell conveyed the message that under any
theory of punishment, fifty-five years for Angelos was excessive
punishment.
Cassell also directed a plea to Congress to correct the
injustice of count-stacking by “repealing this feature and making
section 924(c) a true recidivist statute of the three-strikes-andyou’re out variety.”82 Enhancements would then apply only to
defendants who have been previously convicted of a serious
offense, rather than to first offenders like Angelos.
Angelos v. United States was argued in the Tenth Circuit on
November 14, 2005. An amicus brief filed on Angelos’ behalf
raising the Eighth Amendment claim, signed by 163 individuals,83
reads like a “who’s who” in criminal justice. Its signatories include
retired federal judges, former United States Attorneys and
Attorneys General, and other former high ranking United States
Department of Justice officials.84 They offer the Court of Appeals
arguments bolstered by hundreds of years of collective sentencing
79. Id.
80. Id. at 1261-62.
81. Id. at 1262. Judge Cassell could hardly have expected President
Bush to exercise his pardon power in Angelos’s favor as this president has
granted clemency far less often than his predecessors. A recent Washington
Post editorial notes this dismal record of granting very few pardons and only
granting those with no political risk. See The Forgotten Power, WASH. POST,
Jan. 3, 2006.
83. Brief for Greenberg Traurig, LLP, et al., as Amici Curiae Supporting
Defendant-Appellant, United States v. Angelos, 433 F.3d 738, 2006 WL
41211 (10th Cir. Jan. 9, 2006) (No. 04-4282) [hereinafter Brief for Greenberg
Traurig].
84. For example, signatories include former attorneys general Griffin
Bell, Janet Reno, Benjamin Civiletti, former U.S. attorneys Wayne Budd,
Zachary Carter, Jim Carrigan, Veronica Coleman-Davis, Robert DelTufo,
Roscoe Howard, Donald Stern, and federal judges Patricia Wald, and William
Sessions, totaling 163 former federal officials. Id. at 1-15.
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expertise. They point out the paucity of cases where anyone
received such a severe sentence for a comparable crime, lending
support to the claim that the sentence violates society’s evolving
standards of decency. They also look to factors relied on by the
Court, that is, the Angelos jury’s sentencing recommendation, the
results of the Harmelin test, the actions of state legislatures in
reducing the punishment for marijuana possession,85 the ABA
report urging repeal of mandatory minimum sentences due to
unfairness and excessive severity, and the opinions of sentencing
experts.86 These are indicia of evolving standards that should be
part of a nationwide law of punishment.
VI. THE EIGHTH AMENDMENT AND EVOLVING STANDARDS OF DECENCY
The Eighth Amendment exists against a backdrop of both its
own sparse doctrinal history and Congress’ reaction to the
turbulent drug scares of the 1980’s. The standard articulated in
Rummel v. Estelle is whether the sentence is “grossly
disproportionate to the severity of the crime.”87 There, the Court
noted that “[o]utside the context of capital punishment, successful
challenges to the proportionality of sentences have been extremely
rare.”88 This has certainly been the case. However, it is important
to point out that when Rummel set this standard and asserted the
rarity of successful challenges, Congress had not yet enacted the
Federal Sentencing Guidelines nor had it begun its biennial
upward ratchet of all drug-related sentences, created hundreds of
new crimes, or established enhancement provisions and habitual
offender statutes. A court in 1980 could not have predicted what
was to become a revolution both in the severity of federal
85. Amici note that shortly after the Davis decision the Virginia
legislature reduced the maximum penalty for his offenses from forty to ten
years and governor Robb granted him a pardon so that he could not serve
more than twenty years in prison. Id. at 22. The defendant in Harmelin also
benefited from a change of heart by Michigan’s legislature which amended
the statute by raising the quantity of drugs necessary for a life sentence and
by adding the possibility of parole. MICH. COMP. LAWS ANN. §333.7403 (2001).
Life sentences for drug charges have been enacted in periods of passion, often
after little time for debate. This is precisely the kind of legislation where
courts can most aptly use their power of superintendence.
86. See Brief for Greenberg Traurig, supra note 83, at 22; Angelos, 345 F.
Supp. 2d at 1248-49.
87. Rummel v. Estelle, 445 U.S. 263, 271 (1980).
88. Id. at 272.
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sentencing and the reduction of judicial sentencing power.
Moreover, to say that successful challenges to term of year
sentences will be rare is not to say that they will never occur.
In Weems v. U.S., the Supreme Court asserted that the
Eighth Amendment “may be . . . progressive, and is not fastened to
the obsolete but may acquire meaning as public opinion becomes
enlightened by a humane justice.”89 Justice Stevens reminded us
more recently that the Eighth Amendment was not “frozen when
it was originally drafted.”90 Rather, the excessiveness of a
sentence is judged by standards of decency that currently prevail
and not those that prevailed when the Bill of Rights was written.91
The logical question which follows is where the Court should look
to discover today’s enlightened public opinion. According to
recurring pronouncements on the subject, proportionality review
must be guided by the following factors: “‘the primacy of the
legislature, the variety of legitimate penological schemes, the
nature of our federal system, and the requirement that
proportionality review be guided by objective factors.’”92 While
these items offer some guidance, we must look further for an
answer, because legislatures are political entities and, therefore,
their actions do not tell a complete story.93 In capital cases, courts
have looked to juries for evolving standards on whether particular
classes of defendants may be executed.94 However, the actions of
juries may not be helpful in our inquiry because juries generally
do not decide sentences.95 Surely courts are not constrained in
89. Weems v. United States, 217 U.S. 349, 378 (1910).
90. Roper v. Simmons, 125 S. Ct. 1183, 1205, 543 U.S. 551 (2005)
(Stevens, J., concurring).
91. Atkins v. Virginia, 536 U.S. 304, 311 (2002).
92. Ewing v. California, 538 U.S. 11, 23 (2003) (quoting Justice
Kennedy’s concurrence in Harmelin v. Michigan).
93. State legislatures are closer to the pulse of the people than Congress
and therefore would seem to be a better measure of evolving standards of
decency. Federalism principles argue for more weight being given to state
legislatures than to Congress on Eighth Amendment issues. Courts may need
to be more deferential to state laws than to congressional acts. This argues
for the federal courts to conduct a searching inquiry to determine evolving
standards of decency so as to correctly apply the Eighth Amendment. See
Harmelin v. Michigan, 501 U.S. 957, 998-99, 1001 (1991) (Kennedy, J.,
concurring in part and concurring in the judgment).
94. See, e.g., Roper, 125 S. Ct. at 1190; Atkins, 536 U.S. at 323
(Rehnquist, J., dissenting).
95. Six states and the U.S. military have jury sentencing.
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their search for acquired meaning of the Eighth Amendment by
the political branches of government.96 Courts are likely to be well
aware of the political intensity surrounding the presence of drugs
in society and, more importantly, are likely to be cognizant of the
lag between the ebb and flow of informed public opinion and
legislative action.
It is fair to say that today’s social and political climate is
different, and less harsh toward crime and punishment, than that
of the previous two decades. Public opinion has softened with the
knowledge that extraordinarily long prison sentences for so many
people have exacted unwarranted financial and human costs.97
96. Former Chief Justice Rehnquist commented that “mandatory
minimums. . .are frequently the result of floor amendments to demonstrate
emphatically that legislators want to ‘get tough on crime.’ Just as frequently,
they do not involve any careful consideration of the effect they might have on
the sentencing guidelines as a whole. . .they frustrate the careful calibration
of sentences. . .which the guidelines were intended to accomplish.” David
Kopel, Policy Analysis: Prison Blues: How America’s Foolish Sentencing
Policies Endanger Public Safety, Cato Policy Analysis No. 208, CATO
INSTITUTE, May 17, 1994, http://www.cato.org/pubs/pas/pa-208.html.
97. There is increasing media attention to the tragic human costs of long
prison sentences. See Adam Liptak, Locked Away Forever After Crimes as
Teenagers, N.Y TIMES, Oct. 3, 2005 at A1, 16; Adam Liptak, To More Inmates,
Life Term Means Dying Behind Bars, N.Y TIMES, Oct. 2, 2005, at A1, 28. But,
despite a lessening in the number of executions, criminologist Franklin
Zimring predicts that current imprisonment rates will persist “as far as the
eye can see.” Franklin Zimring, Speech at the Fourteenth World Congress of
Criminology at the University of Pennsylvania (Aug. 8, 2005). Studies
increasingly find racial bias in sentencing policies. See, e.g.,TUSHAR KANSAL,
THE SENTENCING PROJECT, RACIAL DISPARITY IN SENTENCING: A REVIEW OF THE
LITERATURE (Marc Mauer ed., Jan. 2005); Mike Billington, Analysis Points to
Bias in Sentencing, THE NEWS JOURNAL, July, 22, 2005. Judges bound by
mandatory sentencing laws increasingly express reservations about fairness
and equality in sentencing. Justice Anthony Kennedy, Speech at the ABA
Annual Meeting in San Francisco (2003); See also People v. Carmony, 26 Cal.
Rptr. 3d 365, 379-80 (2005) (citing In re Grant, 18 Cal. 3d 1, 10-11 (1976)
(The California Supreme Court struck down a sentence of ten years to life for
a sale of marijuana where the defendant had two prior drug offenses. “In so
doing, the court thought it ‘particularly significant that [the] provisions for
recidivist narcotics offenders penalize broad ranges of conduct and widely
differing types of offenders without distinction, requiring substantial
enhanced mandatory prison terms because of prior offenses regardless of
their temporal remoteness, lack of relevance to the new offense, or relative
gravity.’ The court concluded that the enhanced penalties for repeated
violations are suspect to the extent they limit the sentencing authority’s
ability to recognize gradations of culpability.”)); U.S. SENTENCING
COMMISSION, FIFTEEN YEARS OF GUIDELINES SENTENCING: AN ASSESSMENT OF
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Judge Cassell and counsel for Angelos recounted examples of
these changes: the jury’s straw vote on an appropriate sentence,
Justice Kennedy’s comments to the ABA against mandatory
sentencing, and the ABA’s own report calling for repeal of
mandatory minimum sentencing laws.98 There are additional
signs of change. More than a dozen states have passed reforms
scaling back mandatory minimum sentences, expanding drug
treatment as an option over incarceration, and offering
alternatives to incarceration for low level offenders.99 Public and
private actors are rethinking punishment and expanding the
inventory of evolving standards.100 Consider the following:
HOW WELL THE FEDERAL CRIMINAL JUSTICE SYSTEM IS ACHIEVING THE GOALS OF
SENTENCING
REFORM
138
(2004),
available
at
http://nicic.org/Misc/URLShell.aspx?SRC=Catalog&REFF=http://nicic.org/Lib
rary/020121&ID=020121&TYPE=HTML&URL=http://www.ussc.gov/15_year/
15year.htm (noting the “steady accretion of guideline enhancements,” that
“Congress frequently has directed the Commission to add aggravating
adjustments to a wide variety of guidelines,” and that “political pressure to
respond to public concerns over high publicity crimes could result in frequent
revision of the guidelines without a sound policy basis”).
98. Angelos, 345 F. Supp. 2d at 1262; Brief of Appellant Angelos, supra
note 53, at 14-15 (citing ABA Justice Kennedy Commission Report, supra
note 44).
99. See Cheryl W. Thompson, Incarceration Policies Eased, 2 Reports
Say, WASH. POST, Feb. 7, 2002, at A2. States are either reducing or removing
mandatory penalties due to budget constraints. See, e.g., JAMES AUSTIN &
TONY FABELO, THE JFA INSTITUTE, THE DIMINISHING RETURNS OF INCREASED
INCARCERATION, A BLUEPRINT TO IMPROVE PUBLIC SAFETY AND REDUCE COSTS
(2004); Alexander Marks, More States Roll Back Mandatory Drug Sentences,
CHRISTIAN SCI. MONITOR, Dec. 10, 2004; see also VINCENT SCHIRALDI, JASON
COLBURNE, & ERIC LOTKE, THE JUSTICE POLICY INSTITUTE, THREE STIKES AND
YOU’RE OUT (2004) (“[M]ore than half of all states have changed sentencing
laws, abolished mandatory sentences, or reformed parole policies to ease
crowding and reduce their incarceration rates.” States that are downsizing
their penal policies show no rise in crime); Todd R. Clear, Backfire: When
Incarceration Increases Crime, OKLA. CRIM. JUST. RES. CONSORTIUM J. (Aug.
1996); Connecticut Lawmakers Urge Shorter Prison Stays, CONNECTICUT
NOW, June 27, 2003 (Public opinion increasingly favors treatment for non
violent drug offenders); Dina Temple-Raston, Red Hook Target
Misdemeanors, NEW YORK SUN, Sept. 21, 2004.
FOUNDATION,
RETHINKING
JUSTICE IN
100. See
THE BOSTON
MASSACHUSETTS: PUBLIC ATTITUDES TOWARD CRIME AND PUNISHMENT (2005).
“Massachusetts residents overwhelmingly oppose mandatory minimum
sentencing.” Id. at 14. Currently there are proposals to limit mandatory
sentencing before the Massachusetts legislature. William J. Leahy, Chief
Counsel for Committee for Public Counsel Services, Testimony Concerning
Sentencing Reform (May 21, 2003) (denouncing mandatory sentencing as “a
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1. A recent study shows no connection between mandatory
sentencing and the reduction of crime;101
2. Violent crime declined in the 1990’s, partly due to a greatly
reduced crack market.102 As stated above and elsewhere, the crack
epidemic is what triggered both the widespread fear of violence
and mandatory sentencing;103
3. Numerous opinion polls in recent years show a fall-off in
support for long prison sentences and new interest in a balanced
approach that focuses on prevention, rehabilitation, and other
remedies. 104
4. The U.S. Sentencing Commission has expressed concern
about sentence equality and inordinate prosecutorial control of
sentencing.105
5. Academics and criminal justice professionals around the
world are calling for reform of sentencing for non-violent drug
offenses;106
6. The Supreme Court’s recent sentencing cases have
generated calls for reconsideration of
federal sentencing,
including mandatory minimums;107
public policy nightmare: ineffective at preserving the public safety, and
recklessly wasteful as fiscal policy”).
101. Raymond Bonner & Ford Fessenden, States With No Death Penalty
Share Lower Homicide Rates, N.Y. TIMES, Sept. 22, 2000, at A1.
102. Fox Butterfield, Decline of Violent Crimes Is Linked to Crack Market,
N.Y. TIMES, Dec. 28, 1998, at A18 (citing Bureau of Justice Statistics report
released Dec. 27, 1998).
103. Id.
104. Peter D. Hart Research Associates, Inc., THE OPEN SOCIETY
INSTITUTE, CHANGING PUBLIC ATTITUDES TOWARD THE CRIMINAL JUSTICE
SYSTEM 19 (2002); See The Sentencing Project, Crime, Punishment and
Public Opinion: A Summary of Recent Studies and Their Implications for
Sentencing Policy (2001), available at http://www.sentencingproject.org
/pdfs/1005.pdf (noting that the public is generally misinformed on crime and
crime policy, that public opinion is more complex than policymakers assume
and that the public embraces alternative sentencing options when offered.).
105. See U.S. SENTENCING COMMISSION, 2002 SOURCEBOOK OF FEDERAL
SENTENCING STATISTICS (2002); See also Laurie P. Cohen, In Federal Cases,
Big Gap in Rewards for Cooperation, WASH. POST, Nov. 29, 2004, at A1, A9.
106. See, e.g., Alvin J. Bronstein, Director Emeritus ACLU National
Prison Project, Incarceration as a Failed Policy, CORRECTIONS TODAY 6
(August 2005); JUDITH GREENE & TIMOTHY ROCHE, THE JUSTICE POLICY
INSTITUTE, CUTTING CORRECTLY IN MARYLAND (2003); JUDITH GREENE &
VINCENT SCHIRALDI, THE JUSTICE POLICY INSTITUTE, CUTTING CORRECTLY: NEW
POLICIES FOR TIMES OF FISCAL CRISIS (2002).
107. See, e.g., Letter from James Finckenauer, President, The Academy of
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7. The Supreme Court’s recent rulings reflect changing social
norms on executing juveniles and the mentally ill;108
8. Referenda and legislation in at least nine states have
allowed the medical use of marijuana for treatment of certain
serious illnesses; 109
9. There is increasing evidence of the dehumanization that
occurs during long prison stays where mental illness and brutality
are rampant;110
10. Former federal judges and prosecutors are actively
criticizing federal sentencing policy; the fact that so many signed
on as amici in this case, and on numerous other cases around the
country, serves to signal that nationwide punishment norms are
becoming less punitive;111
11. States have responded to escalating prison costs by
adopting alternatives, such as requiring fiscal planning for each
Criminal Justice Sciences, et. al., to Hon. Patrick Leahy, Ranking Member,
Senate Committee on the Judiciary and Hon. John Conyers, Jr., Ranking
Member, House of Representatives Committee on the Judiciary, Pursuing
Meaningful Sentencing Reform (Jan. 12, 2005) (calling for thorough
evaluation of federal sentencing policy including the Federal Sentencing
Guidelines and mandatory minimum sentences).
108. See Roper v. Simmons, 125 S. Ct. 1183 (2005); Atkins v. Virginia, 536
U.S. 304 (2002); But see recent jury decision that Atkins was not retarded
and is therefore suitable for execution. Maria Glod, Va. Killer Isn’t Retarded,
Jury Says; Execution Set: Case Prompted Supreme Court Ruling, WASH. POST,
Aug. 6, 2005, at A01, available at http://www.washingtonpost.com/wpdyn/content/article/2005/08/05/AR2005080501306.html.
109. The states noted are Alaska, California, Colorado, Hawaii, Maine,
Nevada, Oregon, Vermont and Washington. Gonzales v. Raich, 125 S. Ct.
2195, 2198 (2005). Angelos’s attorneys argues this in support of his getting
over Harmelin’s threshold crime severity requirement, pointing out that
marijuana has been decriminalized in a number of states and is a minor
citation offense in others. Brief of Appellant Angelos, supra note 53, at 24.
110. See Commission on Safety and Abuse in America’s Prisons, Mission
Statement,
www.prisoncommission.org/mission.asp. “Our goal for this
Commission is to spark and inform broad public dialogue on safety and abuse
in America’s prisons and the consequences for prisoners, corrections officers,
and all of American society.” Id. (quoting Nicholas de B. Katzenbach). “In one
year alone, there were 34,355 assaults by state and federal prisoners against
other inmates, and 51 prisoners died as a result of those violent actions.”
Commission on Safety and Abuse in America’s Prisons, Frequently Asked
Questions About the Commission, http://www.prisoncommission.org/faq.asp
(citing the Bureau of Justice Statistics) (last visited on Jan. 21, 2006).
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proposed increase in sentencing.112 Other states are increasing the
use of parole.113
Implicit in Judge Cassell’s repeated characterization of
Angelos’ sentence as unfair, unjust, irrational, cruel and unusual
is his acceptance of the concepts of desert, decency and dignity
that the Supreme Court has said are at the core of the Eighth
Amendment in Weems and Trop. Judge Cassell began his
proportionality analysis by applying Harmelin’s threshold test.
First he looked to the nature of the crime and its relation to the
punishment imposed.114 He stated that:
[i]n weighing the gravity of the offenses, the court should
consider the offenses of conviction and the defendant’s
criminal history, as well as the ‘harm caused or
threatened to the victim or society, and the culpability of
the offender.’ Simply put, ‘disproportionality analysis
measures the relationship between the nature and
number of offenses committed and the severity of the
punishment inflicted upon the offender.’115
The judge found the sentence-triggering conduct of possessing
a barely visible handgun while selling small amounts of
marijuana to be modest.116 The same was true for the guns found
in Angelos’ home.117 His description of the crimes as modest took
into account the fact that Angelos engaged in no force or violence
and he did not injure, or threaten to injure, anyone.118 All of these
facts directly relate to society’s interest in punishing Angelos.119
112. See e.g. North Carolina’s ‘fiscal notes’ policy. Ben Trachtenberg, State
Sentencing Policy and New Prison Admission, 38 U. MICH. J. L. REF. 479, 50612 (2005).
113. See Robert Moran, Drop in N.J.’s Prison Population Defies Trend,
THE PHIL. INQ., May 11, 2005 (after years of hard-line policies on
lawbreakers, New Jersey is following a more measured, reasonable course.);
See also Minnesota Sentencing Commission Report Says State Could Save $30
Million per year with Treatment Not Prison, Jan. 23, 2004,
http://stopthedrugwar.org/chronicle/321/minnesota.shtml. Visit www.msgc.
state.mn.us to read the Minnesota Sentencing Guidelines Commission
Special Report on Drug Offender Sentencing.
114. United States v. Angelos, 345 F. Supp. 2d 1227, 1257 (D. Utah 2004).
115. Id. (citing Solem v. Helm, 463 U.S. 277, 292-94 (1983)).
116. Id. at 1258.
117. Id.
118. Id.
119. Id.
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The Court found that Angelos easily satisfied Harmelin’s other
two steps in the proportionality analysis: comparisons to penalties
for other offenses and comparisons to other jurisdictions.120
It is hard to find a case that so clearly calls to mind the
admonitions of Weems. There, as in Angelos, the Court was
concerned about the relatively minor nature of the crimes, the
length of the minimum term, and the fact that the enhancements
were so much more severe than the possible punishment for the
primary crimes.121 Angelos’ mandatory penalty for the first gun
possession was five years. His mandatory penalty for the other
two gun charges was fifty years. Unlike defendants in other cases
decided by the Supreme Court under enhanced penalty statutes,122
Angelos had no opportunity to be deterred from criminal conduct
by previous convictions. He had no prior convictions. He went
from a clean record to a virtual life sentence based less on his
crimes than on the method of his arrest and prosecution. Congress
could not have intended such a harsh result from an enhancement
law.123 Of course, no one penalogical theory need be adopted by
Congress.124 However, even the harshest state recidivist laws
have either deterrence or incapacitation as their goals. Neither
makes sense here.
Judge Cassell went against his own findings in part because
he believed he had to defer to Congress. It is worth noting,
however, that he did not face the same federalism issues that
confronted the Supreme Court in all the major Eighth
Amendment cases, because the statute at issue in Angelos is not a
state law. The presumption of constitutionality may be narrower
when legislation appears on its face to be within the first ten
120. Id. at 1258-59.
121. Weems v. United States, 217 U.S. 349, 380-81 (1910).
122. See Ewing v. California, 538 U.S. 11, 29-30 (1979). In its most recent
pronouncement on the Eighth Amendment the Court noted that it was
reasonable to give harsher punishment to one “who by repeated criminal acts
[has] shown that [he is] simply incapable of conforming to the norms of
society as established by its criminal law.” Id. at 29.
123. Justice Stevens makes this point in his dissent in Deal v. United
States, saying that “it is absurd to think that Congress intended to treat such
a defendant as a repeat offender, subject to penalty enhancement. . . .” 508
U.S. 129, 138 (1993).
124. Harmelin v. Michigan, 501 U.S. 957, 999 (1991).
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amendments to the Constitution.125 Furthermore, it is within the
Court’s purview to consider that § 924(c) was enacted during an
intensely political era marked by the war on drugs.126 Also, in a
1998 case, United States v. Bajakajian, brought under the Eighth
Amendment’s Excessive Fines Clause, the Supreme Court held
that forfeiture of more than $350,000 was extraordinarily harsh
and grossly disproportionate to the offense in question.127 There
the Supreme Court recognized the difficulty of arriving at a
precise punishment with so little guidance on “how
disproportional a punitive forfeiture must be to the gravity of an
offense in order to be ‘excessive.’ Excessive means surpassing the
usual, the proper, or a normal measure of proportion.”128 The
Supreme Court found little guidance in either the text of the
Eighth Amendment or Constitutional history, noting that the
prohibition against excessive fines was a response to British
abuses.129 This is no less true for the prohibition against excessive
punishment.130 The Supreme Court turns for its answer to the
Eighth Amendment standard enunciated in Solem v. Helm,
comparing the amount of the forfeiture (which the Court said was
clearly punitive) to the gravity of the defendant’s crime.131 The
Court also considered, as did Judge Cassell in Angelos, what the
punishment would be under the U.S. Sentencing Guidelines in
order to confirm the defendant’s minimal level of culpability.132
Additionally, the Supreme Court considered the harm the
defendant caused to the victim and society and found that “[the
fine sought by the government bore] no articulable correlation to
any injury suffered by the Government.”133 There is no persuasive
125. Brief of Appellant Angelos, supra note 53, at 57 (citing United States
v. Carolene Products, 304 U.S. 144, 153 n.4 (1938)).
126. See United States v. Perry, 389 F. Supp. 2d 278 (D.R.I. 2005).
127. 524 U.S. 321, 324 (1998).
128. Id. at 335
129. Id.
130. See id. at 336-37.
131. Id. at 331-32, 334.
132. Id. at 338; see United States v. Angelos, 345 F. Supp. 2d 1227, 1232
(D. Utah 2004).
133. Bajakajian, 524 U.S. at 339-40. The Court’s analysis under the
Solem/Harmelin threshold test is strongly reminiscent of that done by Judge
Cassell in Angelos. In an effort to demonstrate the gross disproportionality of
the fine, the Court says “It is impossible to conclude. . .that the harm
respondent caused is anywhere near 30 times greater than that caused by a
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reason why the courts cannot apply the same kind of gross
disproportionality analysis to term of years sentences that it
applied to fines in Bajakajian. The draconian federal sentencing
scheme at issue here, either as written or as applied by the
government, has not been subjected to Eighth Amendment
scrutiny by the Supreme Court. Applying the federal sentencing
scheme to Weldon Angelos for these charges was distinctly cruel
and unusual.134
Judge Cassell opened the door to renewed consideration of
evolving standards by gathering information from jurors. He cited
changing norms and drew support from many sources, yet, despite
acknowledged changes, he bowed to dubious precedent and
rejected the Eighth Amendment challenge.135
VII. CONCLUSION
When determinate sentencing eliminated the trial judge’s
face-to-face calculation of deserved punishment, it stunted Eighth
Amendment doctrine. No longer did the trial judge ensure
Constitutional fidelity and act as a gatekeeper against unjust
punishment. Judge Cassell’s frustration with his lack of power to
do justice was palpable. He said not once, but many times, that
the sentence was cruel and unjust, and unusual, to the extent that
hypothetical drug dealer who willfully fails to report taking $12,000 out of
the country in order to purchase drugs.” Id. at 339.
134. Judge Cassell and commentators are critical of the amount of
discretion possessed by federal prosecutors on whether to ‘go federal’ in a case
where there is equivalent state law and on what charges to press. This is
particularly salient in cases involving drugs. See Angelos, 345 F. Supp. 2d at
1253; see generally Michael Edmund O’Neill, When Prosecutors Don’t: Trends
in Federal Prosecutorial Declinations, 79 NOTRE DAME L.REV. 221 (2003).
Counsel and the Court raise one of the most criticized standards of decency
points regarding the circumstances of the Angelos arrest. The trap was set
over time, perhaps to ensure his eligibility for a life sentence. The informant
didn’t report the guns until at least the second set of interviews with his
police employers, and the third gun was seized months after the drug sales.
The prosecutor’s offer of fifteen years for a guilty plea at least suggests that
he didn’t think Angelos deserved to be imprisoned forever. His refusal to
reopen plea negotiations after getting new complaints added to the overall
picture of indecency presented by this case. Federal prosecutors have nearly
total control over sentencing, a fact that has generated criticism even in
Congress. See, e.g., Angelos, 345 F. Supp. 2d at 1253, Brief of Amici Curiae,
supra note 35, at 22.
135. Brief of Appellant Angelos, supra note 53, at 36.
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neither counsel nor the Court found anything like it anywhere in
the country.
Courts generally struggle with defining excessive punishment
because it appears to be easily manipulated or, even worse,
conflated with the personal predilections of judges. Obvious
doctrinal gaps appear when one seeks to define Harmelin’s
threshold test and tries to determine the point at which evolving
standards of decency demand less punishment.136 The Supreme
Court has said that evolving standards should be measured as
much as possible by objective factors. As discussed in Part VI, one
can see that such factors are observable, measurable and ready to
be incorporated into Eighth Amendment doctrine. Judge Cassell,
counsel for Angelos and distinguished Amici argue that standards
of decency have evolved to the point where this sentence is unduly
harsh.137 Laws that may have been just when enacted, are
recognized now as too costly. Times change and standards change
with them. It is time to clarify the contours of the Eighth
Amendment. The Court has begun this with excessive fines in
Bajakajian.
The Tenth Circuit could have provided relief to Angelos in a
number of ways.138 It could have reversed the lower court by
136. See Lockyer v. Andrade, 538 U.S. 63, 64 (2003). This was the
companion case to Ewing, upholding California’s three-strike law. Id. at 77.
137. Counsel and the Court raise one of the most criticized standards of
decency points regarding the circumstances of the Angelos arrest. The trap
was set over time, perhaps to ensure his eligibility for a life sentence, the
informant didn’t report the guns until at least the second set of interviews
with his police employers, and the third gun was seized months after the
drug sales. See, e.g., Angelos, 345 F. Supp. 2d at 1231-32, 1254. The
prosecutor’s offer of fifteen years for a guilty plea at least suggests that he
didn’t think Angelos deserved to be imprisoned forever. His refusal to reopen
plea negotiations after getting new complaints added to the overall picture of
indecency presented by this case. Federal prosecutors have nearly total
control over sentencing, a fact that has generated criticism even in Congress.
138. As this article was being prepared for publication, the United States
Court of Appeals for the Tenth Circuit handed down its opinion in United
States v. Angelos. 433 F.3d 738 (10th Cir. 2006). The panel of three judges
affirmed both the convictions and the sentence. Despite affirming the
sentence, the Court took pains to review the Eighth Amendment issue de
novo, and in doing so took issue with Judge Cassell’s proportionality analysis
as well as his characterization of Angelos’s crimes. The Court disputed Judge
Cassell’s calling this an extraordinary case and did not find the sentence to
be grossly disproportionate to the crimes. The Court credited § 924(c) as
accurately reflecting Congress’ concern with the dangers that flowed from the
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declaring that Hutto is no longer useful in Eighth Amendment
analysis while at the same time accepting the Tenth Circuit’s
previous Harmelin findings. It could have avoided addressing the
constitutional questions by deciding that Congress never intended
that 18 U.S.C. § 924(c) be charged consecutively against a first
offender in a simple non-violent drug case such as this one,
thereby distinguishing these facts from those in Deal.139
Alternatively, the Court could have decided that consecutive
sentences of fifty-five years in a single prosecution under 28
U.S.C. § 924(c) violate the Eighth Amendment’s prohibition
against cruel and unusual punishment, an issue that the Court
did not reach in Deal. Notably, Angelos is precisely the kind of
claimant the Supreme Court has said deserves special protection.
As stated by counsel, “it is hard to conceive of a more ‘discrete and
insular minority’ than drug offenders like Weldon Angelos; not
only are they effectively unrepresented and their interests totally
ignored in the legislative process, but such individuals can be
disenfranchised after conviction and often serve as political
scapegoats for all that ails society.”140
A life sentence for Weldon Angelos shocks the conscience of
the community and offends our deepest notions of human dignity.
The Tenth Circuit should have acted to uphold the deep respect
for human dignity that is at the heart of the Eighth Amendment.
This case presents a perfect opportunity for the Supreme Court to
correct both a tragic injustice to Weldon Angelos and a void in
Eighth Amendment doctrine.
combination of drugs and guns. The Court recognized the continuing viability
of Hutto v. Davis, and concluded that “the Supreme Court has never held that
a sentence to a specific term of years, even if it might turn out to be more
than the reasonable life expectancy of the defendant, constitutes cruel and
unusual punishment.” Id. at 753 (citing United States v. Beverly, 369 F.3d
516, 537 (6th Cir. 2003)). Defendant’s options are to ask for a rehearing
before the full bench of the Tenth Circuit or to appeal directly to the U.S.
Supreme Court. The analysis and commentary set forth in this paper would
be equally applicable should either of these circumstances occur.
139. Brief of Appellant Angelos, supra note 53, at 59-65 (see discussion of
rules of lenity and statutory construction).
140. Id. at 58. This is particularly important given the highly politicized
atmosphere that produced these drug laws.
UNITED STATES V. CIANCI
3/25/2006 10:15 PM
Transcripts
United States District Court,
District of Rhode Island.
UNITED STATES of America v.
Vincent A. CIANCI1
No. 00-83T
Argued and Decided June 16, 2005
Resentencing
16 JANUARY 2005 – 10:30 A.M.
THE CLERK: The matter before the Court is Criminal Action
00-83T, United States of America versus Vincent Cianci.
***
THE COURT: All right, as everyone knows, this case has been
remanded for resentencing because since Mr. Cianci was
originally sentenced in September of 2002, the United States
Supreme Court decided the Booker case in which it basically said
that the guidelines are no longer mandatory and that, therefore,
in cases that were pending on appeal when Booker was decided,
which includes this case, the – well, the First Circuit said in cases
that were pending on appeal when Booker was decided, that the
sentence should be subject to reconsideration by the trial judge if
there was any reasonable possibility that the sentence under
1. Resentencing Hearing Transcript, United States v. Cianci, No. 0083T (D.R.I. 2005) (Chief District Judge Ernest C. Torres, presiding).
565
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nonmandatory guidelines would be different than the sentence
imposed, so that’s why we’re here.
So I’ll hear argument from counsel as to why you think the
sentence that was imposed is unreasonable or what you think a
reasonable sentence would be. You both had an opportunity to
submit memoranda. I’ve read your memoranda carefully, but I
want to give you an opportunity to argue first.
***
MR. EGBERT: . . . Your Honor, first, I think what I would like
to do is to try to recast on the Court’s question, because I think it’s
limiting and it need not be. I don’t think the question before you
today is was the sentence imposed reasonable, the 64-month
sentence, because quite frankly, based upon the Court’s findings
with regard to role in the offense and abuse of trust and the
guidelines, since it was within the guideline range found by the
court and it is presumptively reasonable, and so that’s – I don’t
think you’ll get an argument from me on that, that it is a
reasonable sentence. I think the question is different, however. I
think the question is now is it – what is a reasonable sentence,
which is sufficient to satisfy the issues described in 3553(2), but
which is not greater than what is necessary to satisfy those goals,
and is, in essence, the least necessary to satisfy those goals as
required by the statute. And so I don’t suggest to you that under
the findings which were made by the Court previously that I can
argue to you it was unreasonable, but I think what I argue to you
is that under the factors described in 3553 and the dictates of
3553, that it is not the only reasonable sentence and that you
should, and I urge you to exercise your discretion for a reasonable
sentence which is lesser than that which was required by the
guidelines or the guideline range which you found.
***
So, Your Honor, I think where we begin is now that the
guidelines aren’t mandatory and 3553 become factors which kind
of get cycled in with the guidelines giving this Court some
discretion to fashion a reasonable sentence based upon the
circumstances of 3553, having in mind the guidelines and their
advice to the Court and the teachings that have gone behind them
and the way I think it impacts this sentence the most is in this
particular case with the offense of conviction being what it was,
and that is a conspiracy to violate RICO with not a singular
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567
substantive violation, which not a single predicate act violation
found by the jury, and having in mind that the two enhancements
that the Court found, abuse of trust and role in the offense,
managed and served to send the guidelines by a 100 percent
increase, which is an anomaly not usually found. So what we have
is a guidelines range calculated after the enhancements of some
57 to 71 months, where the original guidelines range without
enhancements for this act, for this violation of RICO conspiracy
was 30 to 37 months.
As a beginning point it seems to me that that should make
one pause as to the ability of desire to call that range under the
sentencing scheme as we now have it, as one which is the most
reasonable or the one that is reasonable and serves to achieve the
purposes of 3553. It is my contention to the Court that there are
sentences lesser which can consider these events and put them in
perspective.
In the first instance we have a disparity here that is one that
I have at least not seen in the past, and that is you have a person,
without regard to the role findings, but you have a person who is
convicted of only agreeing, that’s the offense of conviction, only
agreeing in a conspiratorial fashion, being sentenced at all times
greater than the persons actually are charged with and the jury
have found to have committed substantive crimes, and I can’t
recall in my history where that type of disparity has taken place,
and that is, it seems to me, a function of the play of the guidelines
and caused by the guidelines.
In addition, if your Honor please, it is the rarity, I think you’ll
agree, at least in my practice, that a case such as this would get
tried and the defendant found guilty of the conspiracy but not a
single substantive act, thus rejecting his direct participation in
any crime other than the conspiratorial agreement. He was not
convicted of, certainly he was charged, he was not convicted of
extortion, a bribery, taking a gratuity, aiding and abetting either
of those offenses. So what you have before you is kind of a
different, it seems to me, type of situation than the norm.
The extraordinary impact of the enhancements brought this
case up to a level that I’ve described, and you chose at sentencing
last time the mid-range of the guidelines, but there are some
things that you didn’t consider, I suggest, couldn’t consider, in
fact, weren’t around at the time, that ought, in my opinion, to
3/25/2006 10:15 PM
impact that decision of the Court. I’ve talked to you in the past
and I won’t restate what I’ve said in the past concerning his
extraordinary benefits which he gave to the City and your
response that that, in part, how that weighed with his abuse of
position of trust finding. I’ve spoken to you in the past of his
charitable works which continue through today through the use of
his scholarship funds, which even after he has remained in prison
and certainly after he has no ability to run for office or gain
political life, continues to provide scholarships to disadvantaged
youths in Providence area and has done so on a regular basis since
his incarceration.
You couldn’t know, Judge – that for some reason that I can’t
get my arms around – the former Mayor of the City of Providence
convicted of one count of racketeering conspiracy finds himself in a
low to medium institution instead of a camp with limitation of
movement, regular counts, strip searches upon visits, strip
searches in and strip searches out and the like, you couldn’t, I
don’t think, because I couldn’t have imagined that he would be
placed in a position to do his time in an institution which provided
virtually no ability for him to better himself, although what it has
provided him is the ability to better others, and I think you have
been provided with his institutional reports by probation, which
indicate by the institution itself that all tasks that he has
endeavored on he has been outstanding, but there is simply
nothing there for him, for a person of his educational level to
participate in in a manner which would better him.
So what has he done? He has certainly – certainly we don’t
put people like Vincent Cianci in jail to take picture-framing
classes, but that is what he is relegating to doing. But what he has
done with his time is tutoring others, teaching adult education
classes, organizing those type of events which are described in his
progress reports. He hasn’t done camp time. This hasn’t been an
easy time for him. And every day he does is a day of boredom and
unrest.
The time, when fashioning a sentence of what satisfies the
goals of 3553, deterrence. Personally, is he deterred. He has
certainly suffered and continues to suffer. Would others be
deterred? All they need to do is take a look at some 30 months
that he has served in an institution like Fort Dix to get an
understanding that he has had no picnic and this has been an
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569
ordeal for him. But I might add, Your Honor, and I continue,
although an ordeal, and ordeal suffered as a man without whine,
without discontent, and without blame of others. And so to that
regard is part of the same rehabilitation that I’ve seen and that
exists here. How has it been rehabilitation for him? Well,
humiliation breeds humility, and I think 30 months of
incarceration of this fashion—
***
So I think when one looks to this deterrence and
rehabilitation and the like, all the rehabilitation that has been
done, has been done. All the deterrence necessary has been
accomplished, it seems to me. And it struck me when I was talking
to Mr. MacFadyen the other day about this case that we have, and
it’s something that we’ve all fallen into because of the system we
were in of being counted in a way under the guidelines of talking
about numbers of months in a manner that’s disconnected from
reality, and we’re not talking about 64 months, we’re talking
about thousands and thousands of hours of a person wasting away
at Fort Dix unable and with a full inability to contribute so much
that he is able to contribute to society, to sit around bored with
nothing to do. Imagine the punishment for someone of Mr. Cianci’s
intellect and vigor to be placed in a situation that is truly filled
with boredom and inability to contribute other than the minor
areas in which he has been able to participate. That’s hard time,
Judge. That’s real hard time for a person like him. And I suggest
that when you start thinking about those thousands of hours and
tens of thousands of hours and dates that one gets a sense of what
form of sentence is necessary to effectuate the goals of 3553.
***
With regard to Mr. Cianci, the Government and I have filed
papers indicating some of the collateral consequences. The
Government things we’re somehow misleading the Court. I assure
you are we are not. He has not applied for his pension, because he
is not going to get it and is not going to waste his time and he’s not
going to waste anybody else’s time, particularly lawyers and the
like. Had he thought he could get his pension, one might assume
that he would have applied for it and happily pocketed the
$80,000 a year or thereabouts that it would provide him as we
speak . He has not done so, and the reason he has not done so is
because it’s clear under the statute that it is gone and he has no
3/25/2006 10:15 PM
intention of it.
***
The loss of his house, he lost his house. When this
investigation first started and when he first started and had to
gather up his ability to defend himself and fight this case, he sold
his house, it’s not a coincidence. The press chased him around and
made some statements, it had nothing to do with Plunder Dome,
so what. You can see from the timing of the events that the house
that he enjoyed so much and the place that he took his family on
weekends and holidays was given up just at the time when he had
to start to prepare a substantial defense to these charges. The
impact on him, he’ll never run for office again or never hold public
trust again, but particularly for a man like Buddy Cianci what a
punishment that is. It is appropriate, yes, but is it a substantial
one, yes. Never practiced law, spent all the years obtaining a law
license and using it to the advantage of the State as an Assistant
Attorney General at a time, and that’s gone, that was suspended
at the time and will never be returned upon a felony conviction
such as this.
***
He has a good deal to contribute to society, and I think the
Court could consider and fashion a sentence that is reasonable
and sensible, which makes him a contributor before his time runs
out.
***
And I heard you say yesterday, and I was glad to hear it as I
hit 58, that 65 and 66 isn’t particularly old, and I agree with you,
but we all have so much vigor time to contribute to society, and he
has a lot to contribute. He’s done so. And whatever he was
convicted of, and I don’t demean it and I certainly don’t demean it
in this courtroom nor does he, but he has much to give. And I
think that a sentence that is fashioned along the lines of the way –
almost the way we think of a thoroughbred, that have to break
him to saddle him and do enough to get a saddle and a rider on
him, but you don’t want to break their spirit and you don’t want to
break their ability to contribute and produce and he can produce
and he can contribute.
***
It does seem to me, your Honor, that under the very different
kinds of circumstances that exist here today and the kind of
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571
person that you have before you and with his unique abilities, that
30 months is an enormous sentence, 64 months is a huge sentence,
and that you have the ability, the discretion, and I would hope the
desire to give a sentence of less than that, which does satisfy the
four prongs of 3553 and is the lowest sentence necessary to
achieve those results.
***
In closing, your Honor, I think that you have the unique
ability to look at this case, you heard it, I’m not going to tell you
anything you don’t know, and I’m not going to tell you anything
that you probably hadn’t thought of. You made a number of
comments when Mr. Cianci was sentenced, both good and bad,
which I found, at least ones that were based on understanding of
events and reflection ad to the man, so I leave it to the Court and
whatever Mr. Cianci has to say to the Court to consider a sentence
that is less than 64 months which satisfies the requirements that
we’ve discussed, and unless the Court has any questions of me, I
have nothing further to add.
***
MR. ROSE: Your Honor, it is perhaps – not perhaps – it is
fitting that this is the last of the Plunder Dome defendants to be
sentenced, the Government is asking the Court to sentence the
defendant to the highest end of the applicable guideline range of
71 months incarceration. We do so for the following reasons:
***
First, the defendant has refused to admit his guilt and accept
direct responsibility for a nine-year reign of corruption at
Providence City Hall. There was nothing isolated about any of the
cases that have arisen in this investigation.
***
Your Honor, there is nothing isolated about any of the cases
that have arisen in this investigation. They all stem from this
defendant’s leadership of a corrupt City Hall. Frank Corrente,
Richard Autiello, David Ead, Joseph Pannone, Anthony Annarino,
Rosemary Glancy, Angela Mosca and John Scungio did not
operate in a vacuum, they operated in an environment of the
defendant’s making. By refusing to admit his guilt, the defendant
dishonors his former constituents. He fuels cynicism and leaves a
void of his own making.
***
3/25/2006 10:15 PM
Your Honor, yesterday your Honor showed mercy to Frank
Corrente. I was present when the defendant was leaving the
courtroom. He was asked by a reporter whether he was grateful.
He said, “I am grateful for anything that I get.” The Government
observed genuine remorse, contrition and humility in that simple
response. The Court’s generosity was not undeserving in that case.
This defendant, however, has not shown that type of humility or
remorse. Even in his papers filed in advance of this sentencing, he
continues to attempt to minimize his role. He was not convicted of
being the Mayor of Providence. He was convicted of being the
leader of a criminal enterprise. He fostered the environment. It is
justice that the last defendant to be sentenced and who was the
leader should also receive the longest sentence.
And for all those reasons, your Honor, and for the reasons
stated in the Government’s motion for an upward departure, a
reasonable sentence in this case is 71 months incarceration, a fine
of $100,000, a special assessment of $100, and a forfeiture of all of
his – all of his right, title, and interest in Friends of Cianci.
***
THE DEFENDANT: . . .My last appearance before you was on
September 6, 2002, almost three years ago. It was the darkest day
of my life. I remember the words that you spoke to me that day
and reflect upon them often. Today I appear before you differently,
I appear as a prisoner. Certainly a changed status and a changed
person. I’ve changed physically, emotionally, and spiritually, and
I’m confident, your Honor, for the better. Having now lived in a
prison for over two-and-a-half years in a confining atmosphere, I
have learned even more that a life in prison requires respect for
others, it is paramount, and that integrity and human dignity
must be as much a part of prison life as it must be in my life in the
future. I don’t think I have to elaborate to the Court of the strains
of prison life. I hope you will recognize the profound impact prison
has had on me. I’ve been deeply moved by this experience. I’m also
a heart-broken man, your Honor. I’m heart-broken for the citizens
of Providence and the City I was part of for so long. I’m sorry for
the embarrassment and the scars I brought to them, and I
sincerely apologize. I am heart-broken for my entire family. I’m
especially heart-broken for my daughter and grandchildren. My
daughter is a single parent of two beautiful young children. She
tries hard but has her own challenges. I’m no longer there to
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573
provide the needed guidance, love, and emotional support as they
struggle during a very trying time and for that I sincerely
apologize to them. Every day I reflect on my shortcomings and my
failures as well as on lessons learned and what I need to do and
can do to improve myself and contribute to society.
***
In my sixty-fifth year of life, I realize that the sentence
imposed today could affect my freedom for most of the rest of my
life, it is a very sobering thought. I also realize that no matter
what the future holds, the stigma of this conviction will be my
burden for the rest of my life.
I take some solace, however, that some day, hopefully, I will
have the opportunity to contribute in a positive way to our
community and I can return to my family to support and nourish
and love them in person. In the meantime, I know that the key to
peace in life is – in the meantime I know that the key to peace in
life is freedom and the key to freedom is courage. I hope God
grants me the courage to endure, I hope some day I can have the
freedom in service. I’m trying, your Honor, thank you.
***
THE COURT: The question is whether or what sentence
ought to be imposed as reasonable in light of both the guidelines
and any factors enumerated in the statute that are not adequately
reflected in the guideline calculation.
***
The Government here has requested a sentence that is
greater than the sentence that the Court previously imposed, and
to the extent that that request is based on or is the same as the
argument that was made in connection with the Government’s
request for an upward departure at the time of the original
sentencing, the Court rejects the argument for the same reasons
that it rejected the argument when it was framed as a request for
an upward departure.
To the extent that the Government’s request is based on
failure, the defendant’s failure to acknowledge his guilt or express
sufficient remorse, first of all, the failure to acknowledge guilt has
already been taken into account, he didn’t get any credit for
acceptance of responsibility which would have reduced his offence
level under the guidelines, and has expressed remorse, although
still has not acknowledged his guilt, which he doesn’t have to
3/25/2006 10:15 PM
do. . .
***
The second argument the defendant has made is that the
sentence greatly overstates the seriousness of the offense which
the defendant’s memo describes as way down the spectrum of
venality, and there are two reasons offered in support of that.
First, as Mr. Egbert has again noted this morning, the defendant
was acquitted of all 17 substantive charges that were leveled
against him, he was convicted only of the RICO conspiracy count,
and the other argument made only in the memorandum was that
none of the offenses for which the other conspirators were
convicted significantly impacted City services, and the Court did
recognize that at the time of original sentencing in rejecting the
Government’s request for an upward adjustment.
The third argument advanced is that the guidelines did not
permit adequate consideration to be given to a variety of
mitigating factors, including the defendant’s age, family
responsibilities, mainly the needs of his daughter, his civic and
charitable contributions and one recently mentioned, the fact that
he has been incarcerated in a medium security facility rather then
a camp environment.
***
Now, that brings me to the question of the sentence that
ought to be imposed here, and in addressing that question, the
Court has to begin with the recognition that however much the
defendant may disagree, if he does, and I’m not clear whether he
does or to what extent he disagrees, the jury found him guilty of a
rather far-reaching RICO conspiracy that extended over a
protracted period of time and touched a wide variety of activities
by City officials, and the statutory maximum for that offense, I
believe, was 20 years, something in that vicinity.
***
Now, the guidelines, which is the starting point, of course, in
sentencing post-Booker is to determine what the guidelines say,
the Court has already made that determination during the prior
sentencing, so now we get into a question of what would be a
reasonable sentence taking into account the guidelines in the
statute. The guidelines take what I believe to be a reasonable
approach in establishing this sentencing range that applies or is
appropriate to this offense, bearing in mind the factors
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575
enumerated in 3553. The guidelines as already determined by the
Court, establish a range of 57 to 71 months, and if you break it
down, the guidelines establish a base offense level for the
unadorned offense of RICO conspiracy of 30 to 37 months, that’s
the starting point under the guidelines analysis. The guidelines
provide for increase in the range if the offenses that were the
object of the conspiracy or that were committed pursuant to the
conspiracy are especially serious. So under the guidelines
approach, which I think is a reasonable approach, the base level is
increased if the offense is something like murder as opposed to
something like bribery. The base level could also be increased if
the type of bribery involved, depending on the circumstances of
the type of bribery involved, two bribes is more serious than one
bribe and bribes involving more than $5,000 are more serious
than bribes involving lesser amounts, and in this case it’s
irrelevant because the guidelines didn’t call for any such
adjustments here.
***
The guidelines also provide for further adjustments to reflect
the circumstances under which the offense was committed. For
example, and this example is particularly appropriate here, if
there was an abuse of trust involved, the guidelines provide for a
two-level increase, and the Court here did not apply that increase,
although I think it indicated at the time the original sentence was
imposed that, if anything, I thought that that was an
understatement of an adjustment – of the kind of adjustment that
ought to be made under these circumstances.
***
The guidelines also provide for adjustments to reflect the
defendant’s role in conspiracy, which, again, I think is appropriate
and again applicable here because the Court found that Mr. Cianci
was an organizer or leader of the conspiracy. I know that was
disputed. Mr. Egbert very appropriately pointed out there was no
direct evidence of the respective roles, but the Court noted that
there was rather compelling circumstantial evidence that he must
have been the leader, and I explained the reasons for that
conclusion, there’s no need to repeat them. So after making those
adjustments, the guideline range was 57 to 71 months. The Court
sentenced Mr. Cianci in the middle of that range, taking into
account for thing, his age. The Court also considered the good
3/25/2006 10:15 PM
deeds that he had done and balanced those factors as best it could
and came up with a sentence in the middle of that range.
I find that not only is the approach taken by the guidelines a
reasonable approach, but I also find that the result that they
reach in this case is a reasonable result considering the factors
enumerated in 3553, and I’ll discuss some of those factors.
***
Another factor referred to in the statute is the seriousness of
the offense. At the time of sentencing I described this offense as
involving, and I think this is a quote, “An egregious breach of
public trust,” and I further stated that in my judgment a two-level
adjustment for abuse of trust did not come close to accurately
reflecting the magnitude of that breach and that it might have
been the basis for upward departure, which the Court chose not to
impose. An offense of this nature not only is a breach of trust but
it undermines public confidence in Government in general and it
casts a cloud of suspicion over what I think are the vast majority
of public officials who are dedicated, honest, hard-working
individuals. It causes the public to view them with some
skepticism and to assume the worst in cases where it just isn’t
warranted. So I think the seriousness of the offense ranks pretty
far up the scale.
***
The characteristics of the defendant is another factor that the
statute refers to, and, again, this was covered, I think in some
detail at the time of the original sentencing. The Court recognized
the fact that as Mayor, Mr. Cianci did many good, even
outstanding things. He was one of the most vigorous and eloquent
spokesmen for the City of Providence, he certainly played a role in
what I think at the time I said was fairly described as a
renaissance of the City. He has done many things, he started that
charity for scholarship with the proceeds of the marinara sauce,
and he has done many good, selfless things for individuals, but he
has also done some very bad things, and the Court discussed those
at the time of the original sentencing, I don’t think that there’s
much that’s changed or that needs to be further elaborated on. I
will say that one thing that probably wasn’t really focused on at
that time, which I think is a factor that should be considered and I
will consider in imposing sentence here, and that is the hardship
that the place of the Mayor’s present incarceration places on his
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577
daughter who, I gather, regularly visits him and to whom her
father’s counsel and support are very important.
***
I also think another factor worth mentioning here, and these
things are all things, obviously, that weigh in the defendant’s
favor, Mr. Egbert has very appropriately pointed out, one thing
that has impressed my throughout this is Mr. Cianci has accepted
his fate with grace, he took it like a man, he hasn’t whined or
blamed other people, and I think he deserves a lot of credit for
that.
***
As far as the punishment objective is concerned, the Court
agrees that the defendant has suffered some serious collateral
consequences as a result of the sentence. He’s been, as a result of
his conviction, he has been permanently barred from holding
office, something that I know is a very important thing in his life.
He has been disbarred from the practice of law, and may lose his
pension. Representations were made this morning that he doesn’t
even intend to apply. I don’t know, one can’t really say one way or
the other, but certainly there is a significant risk that he wouldn’t
get it even if he applied.
***
Another consequence here is, at least that has been argued as
a consequence, is the fact that he has been incarcerated at a
medium security facility rather than a camp. And I must say I did
wonder about that myself. I’m not exactly a proponent of camps
necessarily. I think they’re perfectly appropriate in some kinds of
cases, not others. I suppose you could debate the kinds of cases in
which they are appropriate or not, but the fact of the matter is
that, at least in my experience, individuals who are accused of
public corruption, so to speak, that involves bribery and moneytaking, if they have no previous record, are assigned to camps. I
remember that was the case with Mayor Sarault in Pawtucket,
that was my case a few years ago, and in this case the defendant
was not. The chief probation officer checked into this and confirms
what Mr. Rose’s suspicion was expressed a few moments ago, and
that is the Bureau of Prisons felt that because of the Mayor’s other
convictions involving the incident with, I think his name is Mr.
DeLeo, that the Bureau of Prisons determined that he ought not
be assigned to a camp.
3/25/2006 10:15 PM
***
I’m also told by Mr. Weiner, our Chief Probation Officer, that
the Bureau of Prisons has expressed an openness to transferring
Mr. Cianci to a place like Devens, which would accomplish two
things. It would put him in a camp environment and would also
put him much closer to his daughter so that she could visit him on
a regular basis without a lesser degree of hardship.
***
As far as deterrence is concerned, that’s a very difficult one to
assess. It is troubling and puzzling to me what it takes to deter
this kind of conduct by public officials. There have been two recent
instances, in my memory, anyway, that are somewhat analogous
to this situation. One was the Sarault case, which I referred to a
few moments ago, in which the Mayor of Pawtucket was
sentenced, I think it was to about five-and-a-half years, and he
served all of the time, minus the good time that he was credited
with. We had a case in State Court involving a Governor who,
pursuant to a plea bargain, served much less time. But we seem to
continue to have these cases. Those sentences which were widely
varying certainly didn’t deter the kind of conduct that seemed to
occur in this case, although much of the conduct, I guess occurred
before at least one of those cases was decided. So it’s very difficult
to assess what the deterrent effect is other than to say that the
penalty has to be a severe penalty, apparently, in order to have a
significant deterrent effect.
***
The bottom line here is that in my judgment considering both
the sentence produced by the guidelines and the factors
enumerated in the statute, it’s my conclusion that a sentence of 64
months is a reasonable sentence.
***
UNITED STATES V. VASCONCELOS
3/25/2006 10:18 PM
Benny VASCONCELOS1
No. 04-081ML
Argued and Decided January 28, 2005
Sentencing
28 JANUARY 2005 – 9:30 A.M.
THE COURT: This is the matter of the United States versus
Benny Vasconcelos. The matter is before the Court this morning
for imposition of sentence.
I have the pre-sentence report which was prepared by the
probation office, and the probation officer prepared the report
before the United States Supreme Court handed up its decision in
Booker and Fanfan. And so the probation officer made the
guidelines calculations in accordance with the law pre-Booker and
Fanfan.
The determination was made that this Defendant is a
criminal history category of IV with a total offense level of 25.
I see that, on behalf of the Defendant, Mr. Cicilline has filed
certain objections to the pre-sentence report which were addressed
by the probation officer.
Mr. Cicilline, have you had an
opportunity to review the pre-sentence report with your client?
MR. CICILLINE: Yes, I have, your Honor.
THE COURT: And are you pressing any of your objections
this morning?
1. Sentencing Hearing Transcript, United States v. Vasconcelos, No. 04081ML (D.R.I. 2005) (Judge Mary Lisi presiding).
579
3/25/2006 10:18 PM
MR. CICILLINE: I would like to address them. I guess I am
sort of pressing them.
THE COURT: Okay. Why don’t you come up to the podium so
you can make a record.
MR. CICILLINE: And, Judge, I would like to ask that at least
my arguments be incorporated into my sentencing argument later
on.
The Defendant objected to Section 18 of the pre-sentence
report where the author has given him a four-level increase under
2K2.1(b) (5) talking about possessing of any firearm in connection
with another – with another felony offense or possessing or
transferring of a firearm with knowledge or reason to believe that
is in connection with another felony offense.
And, Judge, I will probably concede that it’s probably an
accurate enhancement; but when you look at the facts of this case,
when the crime for which he has pled guilty to is trading a firearm
for drugs, I’m not so sure that’s what the guidelines contemplated
as another felony offense.
And it seems to me that that’s sort of murky now; and in light
of Fanfan and Booker, I think we can deal with that a lot easier.
THE COURT: Certainly technically, though the exchange of
drugs for guns fits the definition of the guideline, that the
possession of the guns was in connection with another felony
offense, that felony offense here being distribution of crack.
MR. CICILLINE: Yes, technically correct, but I think in light
of the new Supreme Court decision we can deal with that a little
easier than we would have a few weeks back.
The other objection, Judge, I had was an enhancement –
excuse me, manipulation. In this case, there is some conversation
between the agent who’s conducting the transaction and the
Defendant; and at some point the agent, Troiano, says to him,
How do you want to be paid, in heroin or crack? Had the agent
said heroin, these numbers would have come way down.
Now, I realize the case law is, again, probably against me on
this issue and the manipulation. However, when you look at what
could have been purchased or brought for the exchange, those
numbers, again, would have dropped significantly.
I mean, this Defendant faces a five-year mandatory minimum
because it’s crack. We’re stuck with that. I mean, I realize that.
But it seems to me that one could argue that the Government
2006]
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581
manipulated the sentence in this case by just saying, Yes, we want
crack as opposed to heroin, and then the numbers would have
been lower. Those are my objections. Thank you.
MR. MATOS: Good morning, your Honor. I addressed the
objections in the Government’s sentencing memorandum. They
contradict the plea agreement in this case, your Honor. Not only
that, they’re properly applied.
In regard to the argument of sentence manipulation, it’s just
not an appropriate argument in this case. The Defendant
introduced the concept of crack or heroin.
***
THE COURT: Okay. It does appear from the agent’s affidavit
that it was the Defendant who introduced the idea that it would
be either crack or heroin, he apparently had access to both, and
that the agent took him up on the offer of taking the crack as
opposed to the heroin.
Of course, that clinched for Mr.
Vasconcelos a mandatory minimum sentence in this case.
The next question the Court needs to address and the
Government has already anticipated, I think, the argument that
Mr. Cicilline will make on behalf of this client, is whether or not
the Court should follow the guidelines calculations done in this
case, which would require the Court to impose a sentence
essentially on the drug offense because the guidelines calculations
for that offense are so much greater that the guidelines
calculations for the gun charge.
And the Government’s position, as I understand it, is that the
Court should give great weight to the guidelines as Judge Cassell,
the District of Utah, has set out in his opinion, which I’m familiar
with, although I will say I do not totally agree with.2
Mr. Cicilline, you have a problem in that in the plea
agreement your client has already agreed to certain things. I
guess I probably should have the Government tell me what they
want me to do in terms of sentence, and then you can respond to
it.
MR. MATOS: Your Honor, as the Court has highlighted, the
Government is requesting that the Court give great weight in this
case to the guideline calculation. I understand it’s an argument
2. See United States v. Wilson, 350 F.Supp.2d 910, 911-25 (D. Utah
2005).
3/25/2006 10:18 PM
that the Court is already familiar with coming from the
Government in these matters. It’s –
THE COURT: It’s the second time I’ve heard it, Mr. Matos,
and I guess I’m going to keep hearing it until the First Circuit
rules.
MR. MATOS: As the Court indicated to me a couple of weeks
ago, we’re in unchartered waters these days; but that is our
position, you Honor. I would state that there isn’t anything within
Title 18 United States Code, Section 3553(a), that lands towards a
departure from the guideline calculation.
The Government is recommending – this was a serious drug
offense. It’s a case where the Defendant –
THE COURT: Let me ask you this, Mr. Matos. If the choice
had been heroin, what would Mr. Vasconcelos be looking at?
MR. MATOS: I haven’t done that calculation, your Honor, and
–
THE COURT: I think it’s already done. It would have been 30
to 37 months.
MR. MATOS: Okay. But, your Honor, what I would say to
that is, your Honor, the fact is the Defendant introduced the
concept of either. He had access to both.
THE COURT: Let me address a more fundamental problem
that I have with – and I think this is a perfect case; and, frankly, I
hope you take me up. It’s the perfect case that demonstrates the
artificial inflation of sentences with the crack ratio, and that’s
something that even the Sentencing Commission was troubled by.
The initial offense in this case was a gun charge, and then the
drugs came into it. So now we’ve basically got the tail wagging
the dog in this case. If we were dealing with the gun charge with
the four-level increase, Mr. Vasconcelos, he’s no stranger to the
system, would be looking at 30 to 37 months. Introduce crack into
the mix, and we’re now looking at 84 to 105 months, more than
twice. How do you reconcile that under 3553(a)?
MR. MATOS: Your Honor, the fact is, I understand the
political argument in that regard, your Honor, and I don’t mean to
discount the political argument in any manner.
THE COURT: I wouldn’t label it a political argument. I
would label it an argument on proportionality in sentencing. I
mean, that’s the basis of the argument, that these figures, these
penalties assigned for these grossly inflated figures just don’t
2006]
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583
make sense.
Everybody, it seems almost universally everybody agrees. It’s
just that nobody in a position of power will take the step of fixing
it, even though – even the Sentencing Commission suggested it
should be fixed.
MR. MATOS: Your Honor, it may be that the system – that
Congress at some point decides that there is disproportionality
that needs to be addressed. What Congress has clearly signaled,
however, and we are enforcing laws enacted by Congress, what
Congress has clearly signaled, however, is that crack cocaine is an
offense that it intends to be addressed more severely. That’s why
there’s a five-year mandatory minimum here.
THE COURT: Oh, I know.
MR. MATOS: And given the fact that there is that clear
Congressional intent on applying a different sentencing level, I
don’t see how there is a – how that can then be transformed into
basically contradicting the intent of Congress into coming up with
an explanation that a sentence outside the guideline range would
be reasonable pursuant to 3553(a).
THE COURT: Isn’t that what Booker says that the sentencing
judge should now look at those guidelines as advisory, and in
doing so, the Court, the sentencing Court is directed to the factors
set forth by statute in 3553(a), and tailor a sentence that fits not
only the offense but the offender because, you see, in the past we
were more concerned with the numerical machinations we had to
go through under the guidelines and really left out perhaps the
most important element of the equation, and that was the
offender. Thirty-five fifty-three directs me to look at the offender
as well as those other factors.
MR. MATOS: I think, your Honor, there’s another part of that
that I think needs to be addressed both by the Government as we
go forward in these matters and by the Court as well, which is the
whole genesis of the guidelines in the first place which were this
perception that there needed to be a certain amount of certainty
regarding sentences and parity amongst Defendants.
THE COURT: I agree with you. I think that that’s what
everybody thought at the outset. I think that when Congress
started tinkering with them and including these mandatory
minimums and the directive with respect to crack, as I said, even
the Sentencing Commission knows that those guidelines don’t
3/25/2006 10:18 PM
make much sense. That’s why I’m saying I hope you take me up
on this one.
MR. MATOS: Your Honor, if –
THE COURT: I take it you’re going to advocate, as you are
obligated to do, for the low end of the guideline range.
MR. MATOS: That’s correct, your Honor. If I can make one
additional point in regards to the Court’s comment regarding the
sentencing guidelines, and the Sentencing Commission is
obviously a body that focuses on this. Basically that’s their fulltime job.
Despite the fact that there’s a minimum mandatory five-year
sentence in this case and despite the fact whether the Sentencing
Commission had concerns about the disparity in sentences
between crack cocaine and other drug offenses, this Defendant,
according to the sentencing guidelines that were enacted by a
commission that has expressed this view, still comes out under
their guidelines at 84 months, which is more than five years.
So they’ve got him above the mandatory minimum even after
they have considered this issue regarding the disparity.
THE COURT: Well, they weren’t permitted to fix the problem.
I think that the Commission itself took the position that it should
be fixed, but they weren’t permitted to do so.
MR. MATOS: I understand, your Honor, but my singular
point on that is even despite their concern about it, the guideline
range for this Defendant is not five years, which presumably the
Sentencing Commission couldn’t go below that, but we’re still at a
sentence over five years even under the guidelines that were
enacted by a commission that has expressed this concern.
THE COURT: I know. I know. Okay.
MR. MATOS: Thank you, your Honor.
THE COURT: Mr. Cicilline, you heard me tell the
Government that I hope they take me up. So you’re starting out
already ahead of the game.
***
MR. CICILLINE: Judge, the Court has fixed right on the
problems. I mean, this is a perfect example of a young man, that
because of the way the Government has chosen to proceed, they’ve
sort of manipulated the numbers.
THE COURT: Well, I’m not going to buy your manipulation
argument because your client was the one apparently who
2006]
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585
introduced the idea that he was a full-service drug dealer and had
an assortment of narcotics available to him with which he could
make this purchase.
MR. CICILINNE: Judge, respectfully, what I think happened
here is that this Defendant had access to the drug dealers who
could provide whatever they wanted.
THE COURT: Oh, yeah.
MR. CICILINNE: In other words, I don’t think he had a shop
set up to sell drugs. He knew where he could get them.
THE COURT: But he essentially is a walking drug
supermarket because he can get whatever you want. So your
manipulation argument’s not going to carry you too far. You’re
much better off, frankly, with the proportionality argument.
MR. CICILLINNE: And, your Honor, the proportionality
argument is clearly one that we would like to – this Court to look
at closely.
We have a Defendant who, because of the numbers, had the
drugs been heroin, the numbers would have been farther down on
the scale, allowing him to receive a sentence less than half of
what, because of the crack cocaine, almost doubles his sentence.
Frankly, Judge, I guess I’m stuck with, as I said in the presentencing memo, I’m stuck with the statutory problem of the five
years, and that gets me. We can’t do anything about that.
It seems to me that that would be the appropriate and
reasonable sentence that ought to be imposed in this case in light
of the proportionality argument, in light of the fact that he is a 21year-old man.
When you look at his criminal history, Judge, it clearly is –
it’s a lot of little minor petty stuff in there, you know, driving
offenses, trespassing.
There is one robbery, but that was
ultimately dismissed.
It seems to me that when you look at that, when you look at
his age of 21 years old, when you look at the fact that he’s going to
lose five years of his life if the Court comes down to the 60-month
sentence, he will lose five years of the prime of his life.
And I would also point out that the Supreme Court has talked
about using the guidelines as – for guidance. I would argue to the
Court that the statutory penalties in this case are also guidance
given to us by Congress.
THE COURT: Well, they are more than guidance. The
3/25/2006 10:18 PM
mandatory minimum is more than guidance. It’s just that.
MR. CICILLINE: It’s that. But again, it’s similar. We look at
it, that’s what we’re going to end up with, that’s an appropriate
punishment for a young man who’s never really spent any time in
jail, Judge. He did 90 days. It seems to me that the 60-month
sentence would be appropriate, and I think the Court said
something that I found very significant.
You now have an opportunity to introduce the offender into
the punishment mix as opposed to dealing with just the offense,
and that’s really profound because that’s exactly what you should
be doing. You should be introducing the offender into the mix
with the offense and coming up with the appropriate sentence,
and I’m asking this Court to give him a reasonable sentence of 60
months.
***
THE COURT: . . . As I said, the probation officer in this case
did the guidelines calculations; and this case, because of the
nature of the charges and the nature of the narcotics involved,
sets up a perfect example of how the guidelines, if they were
mandatory and controlling, would set up a situation where the
Court would be required to impose a sentence far in excess of what
might be considered an appropriate or just sentence. And that’s
because of the introduction of the crack cocaine into the mix.
This Defendant had approximately 12-and-a-half grams of
crack cocaine that he used to purchase the two firearms that he’s
charged with possessing in Count I of the Information.
The guidelines require the Court to take into account that
those firearms were possessed in connection with another felony,
here the drug transaction, and the increase in the offense level
there is four levels because it’s without regard to the nature of the
narcotic involved.
That guideline range provides for 30 to 37 months, I think, of
incarceration.
***
THE COURT: And that takes into account the Defendant’s
criminal history. When we proceed to the guidelines calculations
on Count II, the distribution of cocaine base, now the Defendant,
because, again, of his criminal history and the amount of the drug
involved, is looking at a minimum sentence of 84 months or as
much as 105 months, almost three times the amount of time for
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587
the true underlying offense in this case, which was a felon in
possession of firearms.
And but for the fact that the exchange rate here is predicated
on crack versus money versus heroin versus powder cocaine, the
Court would be sentencing the Defendant somewhere around twoand-a-half to three years.
Fortunately for you, Mr. Vasconcelos, the United States
Supreme Court rendered its decision in the Booker and Fanfan
cases; and in a very thoughtful opinion, Justice Breyer has ruled
that, and for the majority he has, that the guidelines are
unconstitutional if they’re mandatory.
And in that opinion, he tells the district judges who sentence
the human beings who come into the courtroom to take the
guideline into account as on factor in tailoring an individualized
sentence that takes into account not only all of the facts and
circumstances of the offense but also requires the Court to go back
to the statute, 3553(a), and the statutory factors that he Court
must take into account in fashioning that individualized sentence.
I start with the first sentence of 3553(a), and that is that the
Court shall impose a sentence that is sufficient, but not greater
than necessary, to comply with the purposes set forth in
paragraph (2).
And as I look at this case, I see a young man who is 21 years
old, I guess you’ve turned 22 now, just barely, this month, who has
spent little time in prison, who does not have an extraordinarily
bad record, who has had a tough time of it growing up, DCYF
[Department of Children Youth and Families] doesn’t get involved
in your life if things are going well at home, and apparently DCYF
was involved for quite some time, whose record of convictions is
not, as I say terribly bad and who tells me he got his high school
diploma while he was in the training school. That’s good. I’m glad
you finally did that.
And so as I look at the factors set forth in paragraph (2) of
3553(a), I have to take into account the need for the sentence
imposed to reflect the seriousness of his offense. This is bad. This
is bad, Mr. Vasconcelos. You’re a felon. You can never have a
gun. I don’t know what you were planning to do with those two
guns, but it was only going to lead to more trouble.
I also have to take into account a sentence that will promote
respect for the law. Here, there’s a mandatory minimum term
3/25/2006 10:18 PM
that’s required of five years; and in my judgment, five years to a
young man who just turned 22 is an extraordinarily long period of
time and would certainly impress upon him a need to respect the
law.
It certainly provides just punishment. It will also, hopefully,
deter this Defendant and others form engaging in the same kind
of criminal conduct. It will be sufficient time to protect the public
from this Defendant because, as I say, Mr. Vasconcelos, you’re
never going to be able to have a gun, so make up your mind never
to be anywhere near one.
I need to take into account the need to provide the Defendant
with educational or vocational training. This Defendant, so far as
I can see, has never had a job, and that may well be because he’s
never even bothered to look and because he doesn’t have the
training necessary to find one.
I have to take into account the kinds of sentences available to
me. Here, there’s mandatory minimum term of incarceration of
five years, and so incarceration is the only sentence available to
me.
And finally, I have to take into account the kinds of sentences
and the sentencing range established under the sentencing
guidelines. And in this case, as I said, the guidelines, because of
the introduction of this rather small amount of crack cocaine, take
this case way into the stratosphere of sentences.
And as I said earlier, even the Commissioners, the Sentencing
Commission itself, almost all judges, the crack guidelines I think
almost universally are believed to be way too high.
So the guideline in this case simply doesn’t make sense. As I
said, Count II here is the tail wagging the dog. The real offense is
Count I, the possession of the firearms.
And so I make the determination here that the guideline
range is too high for this particular offense and this particular
Defendant. I have no choice but to impose at least the mandatory
minimum term, and I think here that that is certainly a sufficient
term of incarceration to achieve the objectives as set forth in
3553(a). Frankly, it’s a little more than I think is required, but I
have no choice.
Therefore, Mr. Vasconcelos, I sentence you to a term of five
years of incarceration on both counts to be served concurrent with
each other.
UNITED STATES V. DAGOBERTO LUNA
3/25/2006 10:20 PM
Dagoberto LUNA1
No. 03-111ML
Argued and Decided January 19, 2005
Government’s Motion for Reconsideration and Correction of
Sentence
19 JANUARY 2005 – 9:30 A.M.
THE COURT: This is the matter of the United States versus
Dagoberto Luna. The matter is before the Court this morning on
the Government’s motion for reconsideration and correction of
sentence.
Mr. Luna, so you’ll understand, I know you were here last
week and I imposed a sentence that I thought was an appropriate
sentence. However, the Government has since filed a motion
pointing out that the Court does not have the authority to impose
a suspended sentence, which was part of the disposition I made in
your case last week; and in an effort to correct that sentence, I
scheduled the matter today for hearing.
So I am vacating the sentence imposed last week on the basis
of the Government’s motion indicating that the sentence I did
impose, at least that portion that suspended a term of
imprisonment, is not permissible under the current statutory
scheme.
1. Reconsideration and Correction of Sentence Hearing Transcript,
United States v. Luna, No. 03-111ML (D.R.I. 2005) (Judge Mary Lisi
presiding).
589
3/25/2006 10:20 PM
***
THE COURT: Okay. Let’s, then, start anew. This Defendant
stands convicted by virtue of his admission of illegally reentering
the United States after having been deported.
The probation officer in this case prepared a comprehensive
pre-sentence investigation report which chronicles not only this
Defendant’s personal history but also a rather remarkable history
of prior criminal offenses.
At the time that the pre-sentence investigation report was
prepared, the Supreme Court had not ruled in the Booker and
Fanfan cases. Accordingly, the probation officer under the
prevailing law made a guidelines determination that this
Defendant has a criminal history category of VI with a total
offense level of 22, which provides for a guideline range of 84 to
105 months of incarceration.
As I read the Booker decision, primarily Justice Breyer’s
majority opinion, the guidelines themselves are no longer
mandatory and controlling on the Court’s sentencing authority.
Rather, the guidelines have become advisory and are one item
that the Court must consider in fashioning an individualized
sentence.
The other change in the law that Booker works is that the
standard on appeal is one of reasonableness, and so this Court’s
sentence will be measured on a reasonableness test rather than
whether or not I have properly applied mechanically and
mathematically the prior system that was in place.
***
THE COURT: Okay. So let me hear from you, Mr. Lockhart
[for the Government], on sentence.
MR. LOCKHART: Your Honor, as we pointed out in the
memorandum in aid of sentencing, we believe, along with Judge
Cassell of Utah,2 that in order to meaningfully consult the
guideline sentencing range as Booker requires and as the
Sentencing Reform Act requires, it is, first of all, necessary to
have a pre-sentence report prepared; and that’s been done in this
case.
In other words, without a GSR or guideline sentencing range,
2. See United States v. Wilson, 350 F.Supp.2d 910, 911-25 (D. Utah
2005).
2006]
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UNITED STATES OF AMERICAN V. LUNA
591
the Court has no benchmark to make a decision on whether it
should follow the GSR, guideline sentencing range, or not.
So the PSR was prepared in this case. There were no – there
was at one time an objection to the criminal history score
calculation. That objection was withdrawn at the sentencing
hearing, and so there is no dispute now that the total offense level
is 22, criminal history category is VI.
So I think, along with Judge Cassell, you have to start from
the premise that that guideline sentencing range is something
that you should place, what Judge Cassell says, considerable
weight on in arriving –
THE COURT: And, of course, Judge Cassell has no
precedential affect here.
MR. LOCKHART: He doesn’t.
THE COURT: Last I checked, he’s a district judge out in
Utah.
MR. LOCKHART: Correct, but we think that his opinion
forecasts the likely First Circuit result in some fashion or another.
We also think that it’s a fair reading of the Booker opinion itself
and the Sentencing Reform Act as well.
Remember that the Sentencing Reform Act, a provision which
is still valid of that Act, says in 3553(a)(4), I believe, that the
Court has to consult –
THE COURT: Well Booker doesn’t say that we have to give
heavy reliance on the guidelines. As I read the majority opinion,
that is, the Breyer majority opinion, he says that the Federal
Sentencing Act makes the guidelines effectively advisory. It
requires a sentencing Court to consider guideline ranges, but it
permits the Court to tailor the sentence in light of other statutory
concerns as well with a reference to Section 3553(a).
MR. LOCKHART: Yes, but as Judge Cassell points out, the
fact that you’re required to consult the guidelines leaves open the
question of what weight the Court should place on the guidelines.
We would agree that Booker doesn’t directly address the
question of what weight the Court is to place on the guidelines. I
don’t think it implicitly says the Court doesn’t have to place much
weight or that the Court has to place great weight. It leaves the
question open.
And so the wisdom of Judge Cassell’s decision, we think, is
that he looked into the question of what weight was appropriate
3/25/2006 10:20 PM
and decided that it made sense to place considerable weight on the
guideline range for a couple of reasons. First of all, the statutory
factors –
THE COURT: What exactly does that mean, though, Mr.
Lockhart?
MR. LOCKHART: Well, what it means is that the Court
should begin from the presumption that the guideline sentencing
range calculated by the pre-sentence report should be the
appropriate range unless there is some unusual or exceptional
feature in the case. That is the way we read it.
In other words, the Court should take that as the starting
point and then decide whether, in light of the other statutory
factors set forth in 3553, the Court should deviate from what or
whether, for example, there’s a basis for a downward departure or,
conversely, an upward departure under the guidelines.
THE COURT: Are we really talking in terms of departures,
though, and this is an issue I think Booker doesn’t address, and
that is the whole section of the guidelines on departures, when the
Court says that the guidelines are no longer mandatory but rather
advisory?
I’m not so sure that we’re really stuck with a departure mode
if the Court decides, for instance, in this case to sentence outside
that guideline range.
MR. LOCKHART: Well, our view of it is that in order to
meaningfully consult the guidelines, you have to go through the
full range of guideline analyses, including any upward or
downward departure requests made by the parties.
Now, after you determine what the guideline sentencing
range is, we agree that, obviously, the Court still has flexibility
because the guidelines are now advisory to impose a different
sentence; but what is clear from the Booker decision is that the
probation department is still supposed to prepare pre-sentence
reports, the parties are still supposed to go through the process of
objecting to that, and it makes sense that, consequently, the
parties should also be in a position to brief the question of
downward or upward departures.
I think it’s only after the Court resolves sentencing objections
and departure requests that the Court then needs to look at the
question of is it going to deviate from the final guideline
sentencing range. It’s only through arriving at that final range –
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593
THE COURT: Let me ask you this, Mr. Lockhart. I’ve read
the decision out of Utah, and I’m not sure how one reconciles that
approach with the standard of review that the Court announced in
Booker.
The standard now is one of reasonableness. It’s not whether
or not the Court gave or relied heavily on the guidelines provision
or even that the guidelines provision is to be considered a
presumptively reasonable sentence.
So how do you reconcile the Court’s pronouncement that the
standard of review on appeal of the sentence, one the Court has
applied 3553(a), and a portion of that obviously is a look at the
guidelines themselves, how do you reconcile that?
I mean, granted, it would be very easy for this Court to simply
say, as I think the Court in Utah seemed to be saying, Well, what
Booker really means is the guidelines aren’t mandatory anymore,
but the right way to do it is the apply guidelines. I’m not so sure
that’s what Booker requires.
MR. LOCKHART: Well, the way to reconcile it is this way,
your Honor. First of all, we disagree with the position that the
reasonableness standard is the primary light by which this Court
must be guided. It’s the standard of review on appeal. Booker
makes clear you have to consult the guidelines. The only way to
do that is to actually find out what the guideline sentencing range
is and then explain why you’re not following it in a given case.
Remember, there is the Feeney Amendment which requires an
explanation –
THE COURT: Oh, I remember the Feeney Amendment.
MR. LOCKHART: – an explanation for deviating from the
GSR. That provision was left on the books, it wasn’t really
affected by Booker, and so what that suggests is that the Court
has to sort of start with the presumption that the guideline
sentencing range is an appropriate starting point and then work
from there and explain why it’s deviating from that range.
Now, on appeal, the Court of Appeals will apply a
reasonableness standard, but I’m quite confident that it will be
fleshed out when the First Circuit and other circuits get is so that
there will be more to it than just a sort of I-like-it-when-I-see-it
kind of reasonable standard on appeal. I assume, along with – I
think Justice Scalia may have made this point in his dissent, that
the Courts will enact more of an analytical standard than that on
3/25/2006 10:20 PM
appeal and that what we’ll be left with is a rule which says that a
sentence within the guideline sentencing range is presumptively
reasonable absent some extraordinary circumstances; a sentence
that’s outside the guideline sentencing range, while it might not
be presumptively unreasonable, is going to be deserving of further
scrutiny by the Court of Appeals.
They will take a closer look at that sentence, and they will
expect, consistent with the Feeney Amendment, an explanation
from the Court on how it arrived at that sentence.
Now, I think, practically speaking, the Government is not
going to take every single one of these cases up before the First
Circuit on an unreasonableness theory. It will have to pick and
choose of necessity, and so what I expect is you will begin to see
before the First Circuit cases where there’s just such a yawning
gap between the guideline sentencing range and the sentence
imposed that the Government appeals or a failure on the part of a
judge to show that it’s considered the guideline sentencing range
and the statutory criteria.
So that is the way I expect it will play out in the Court of
Appeals, and that’s how I think you can reconcile the
reasonableness standard with my position.
Now, having said that, there was no objection to the PSR.
The GSR was correctly calculated. The low end of that is seven
years. Our plea agreement commits us to making that
recommendation, and we stand by it. And I think, as the Court
pointed out, this Defendant has a very significant record, criminal
record in this case, plus the fact that he’s come back now twice to
this country showing that he’s not willing to abide by our
immigration laws.
THE COURT: I think, so that you’ll know, Mr. Lockhart, I
believe that the Government conceded that the first deportation of
Mr. Luna was procedurally defective; and so that was not the
basis for the charge in this case.
I’m not so sure what happened in that one; but for purposes of
sentencing, I’m really not going to take that one into account.
MR. LOCKHART: Okay. So in any event, we stick with our
original recommendation of seven years. Thank you.
THE COURT: Okay. Mr. Roy [for the Defendant].
MR. ROY: Thank you, your Honor. Your Honor, in terms of
analyzing what the Court has to do, I agree with the Government
2006]
3/25/2006 10:20 PM
595
that the PSR certainly has a lot of value. A lot of time has gone
into implementing the guidelines, and a lot of work goes in by
probation in terms of putting a report together.
So I think that the reports are still very, very valuable; but I
think in terms of where Booker leaves us right now, I think that
you have to look at the provision of 18 U.S. Code, Section 3553,
that states that the Court shall impose a sentence that is
sufficient, but not more than necessary, to punish the Defendant.
There are a litany of different things the Court has to
consider, but I think that the Government’s position, and the way
that Mr. Lockhart would have the Court analyze this, I think
would really nullify the Booker decision.
If the Court still has to abide by the guidelines and has to
perform a departure analysis to go below the guidelines, then
really Booker means nothing; and that’s consistent with what the
Government, I think, has done after Blakely. For every case I
had, they said despite some clarity in the Blakely opinion, Blakely
doesn’t apply to the guidelines. And now that the first part of
Booker says it does, well, if it does apply, it doesn’t really apply.
We still win no matter what. And I think that that’s not how I
read Booker, you Honor.
So I’m asking the Court to impose the same sentence that it
imposed, four years to serve, 48 months. That is still a very
substantial sentence for this nonviolent crime.
In terms of analyzing whether or not the guideline, the overall
guideline is reasonable, one of the things I thought about when I
was looking at the Government’s memo, your Honor, is, we started
off with Mr. Luna with a 16-level increase for an aggravated
felony. He went from 8 to 24.
Parenthetically, Level 24 is the same level the Defendant
would be at if he had one prior drug felony, possessed a firearm in
connection with another drug dealing offense. That’s how huge
the 16-level increase is.
And also parenthetically, and I know the Court sees these
cases, if Mr. Luna had a firearm and had two prior violent
felonies, that would make him a Level 24, two prior drug felonies.
So that’s the extent of the increase that the guidelines
provided for essentially a nonviolent crime. So I think that to put
someone in jail for seven years for a nonviolent crime certainly
costs the taxpayers of the United States a great deal of money,
3/25/2006 10:20 PM
and I think that seven years is more than is necessary for the
Court to comply with what Section 3553 requires.
***
THE COURT: Mr. Roy, I’d like you to address another
consideration, and that is the terms of his incarceration as one
who will eventually be surrendered for deportation.
MR. ROY: One thing, you Honor, and I received a memo
actually from another inmate at Wyatt yesterday, and I intended
to address this, that is inmates that are facing deportation like
Mr. Luna have restricted privileges within the Bureau of Prisons.
They are not eligible for, for instance, the 400-hour drug
program. They’re not eligible for boot camp, for all intents and
purposes. And the reason, your Honor, is, the presence of an
immigration detainee is a higher security factor, if you will, and
I’m certain appropriately; but their incarceration, your Honor, is
different than the incarceration of inmates that are – that do not
have immigration holds like Mr. Luna.
***
MR. ROY: And for those reasons, your Honor, I ask the Court
to respectfully impose the 48-month sentence that was imposed
last Friday. I think it’s reasonable under all the circumstances.
Thank you.
THE COURT: Mr. Lockhart, did you want to respond at all?
MR. LOCKHART: Just briefly, your Honor, on that last point
first. I believe the First Circuit has held, obviously pre-Booker,
that the different conditions under which deportable prisoners are
incarcerated is not a basis for a downward departure.
THE COURT: A downward departure.
MR. LOCKHART: Right. So I think we should – again, in
light of my overall philosophy articulated to the Court, you have to
begin from that premise.
Now, we also don’t see that factor anywhere in the statutory
criteria either of the – I think it’s the eight or so factors set forth –
THE COURT: Well, doesn’t 3553(a)(2)(D) talk about the need
for the sentence imposed to provide the Defendant with
educational or vocational training, medical care or other
correctional treatment in the most effective manner?
So shouldn’t I look at exactly what terms and conditions of
confinement Mr. Luna will be facing versus someone who, as Mr.
Roy pointed out, is a Level 24 here on a drug and gun charge?
2006]
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597
MR. LOCKHART: No, because the remedy that you’d be
giving him a more lenient sentence wouldn’t provide him with any
sort of available educational programs.
In other words, there’s a disconnect to our mind between the
goal of the Court in providing him with more of the services and
the remedy imposed. Lessening his prison term isn’t going to give
him access to more programs within the prison.
THE COURT: Well, don’t I have to read that provision,
though, in concert with 3553(a), that is that I should impose a
sentence that’s sufficient but not greater than necessary to comply
with the purposes set forth in Section (2)?
MR. LOCKHART: The answer to that is, you’re referring to
what the Courts have called the parsimony principle, and Judge
Cassell talks about that in his opinion; and Judge Cassell’s point,
which is our point, is that the Sentencing Commission has taken
into account the parsimony principle as well as the other factors in
3553 in arriving at the guideline sentencing range, and this is why
it’s so important to begin from the premise that that range should
control absent an exceptional case.
So, in other words, the Sentencing Commission, which has
access to data on reentry offenders and which took into account
deterrent issues, the parsimony principle, rehabilitative issues
and so forth, said that a sentence of low end, seven years in this
case, was appropriate.
And so, again, there would have to be something very
uniquely – very unique, rather, to justify a major difference in the
sentence based on perhaps some added parsimony that the Court
might wasn’t to dole out in addition to what the Sentencing
Commission has already provided.
THE COURT: Okay.
MR. LOCKHART: And just for the sake of the record, to the
extent the Court disagrees with Judge Cassell on the weight to be
given the guidelines and thinks that the guidelines are just on
factor to be considered and that they’re not deserving of
considerable or great weight, we’d ask the Court just to clarify for
the record what its view is on that question because it seems to me
that is the threshold legal question; and because the Court hasn’t
yet imposed a sentence, we don’t know yet whether it’s going got
be one that we agree with on a reasonableness scale.
THE COURT: Mr. Lockhart, I thank you for coming today
3/25/2006 10:20 PM
because this issue is one that all of us involved in the system will
struggle with over the next several months and maybe years.
The Supreme Court’s decision was on that I think no one
really anticipated. I think all of us were wagering that perhaps it
would be A or B. Instead we got C. And all of us are still, I think,
digesting it; and what you will see will be a number of trial judges
like myself struggling with what does it mean, what are the rules
now.
We have been freed of the binds of the guidelines, and in
many respects that makes the job of the sentencing judge all the
harder because the sentencing judge now must look at a number
of variables, including the guidelines.
I’m not discounting their validity in terms of their now
advisory nature; but I think, as you said, we will not know
precisely how we should proceed on these matters until the Court
of Appeals, and perhaps even the Supreme Court again, has an
opportunity to decide some of these cases.
***
THE COURT: The Court in this case has the pre-sentence
report which, as I said at the beginning o this hearing, sets forth
this Defendant’s rather substantial criminal history. He has a
record of convictions going back to his teen years. He has been
sentenced to prison for many of those offenses.
The pre-sentence report also sets forth this Defendant’s
personal history. He says, and I have no reason to disbelieve him,
that he was brought to this country as an infant; and, in fact, he
entered the country as a legal permanent resident, according to
the pre-sentence report.
He was deported to the Dominican Republic where he has no
family, doesn’t speak the language and has absolutely no support
system. He is, for all intents and purposes, an American. He’s
lived in this country his entire life with the exception of the short
period of time shortly after his deportation.
The guidelines in this case, based on his criminal history and
on that 16-level increase required by virtue of the fact of his prior
conviction for an aggravated felony, in this case I think it was an
assault, put the Defendant in a range of seven years, that is 84
months, to 105 months.
It’s a very long sentence even at the low end; and if I were
sentencing the Defendant prior to the Supreme Court’s decision in
2006]
3/25/2006 10:20 PM
599
Booker, I would have been required by the law to impose at least
the 84 months of incarceration.
Under Booker, however, the trial Court is granted some
discretion in sentencing. As Justice Breyer wrote under the
majority’s opinion on remedy, “The sentencing Court is required to
consider the guideline ranges, but it permits the Court to tailor
the sentence in light of other statutory concerns as well,” and the
Court directs us to the statute entitled “Imposition of Sentence.”
Now, 3553, that is Section 3553 of Title 18, sets forth several
factors that a Court must consider in fashioning a sentence in a
particular case, that is, with respect to a particular Defendant.
Unlike the law pre-Booker where the Court was really
constrained by the mandatory nature of the guidelines, in the
post-Booker era, trial judges must still adhere to the law as
Congress has given it to us in Section 3553, but trial judges are
also free to utilize judgment and have the ability, as Justice
Breyer said, to tailor a sentence, an individualized sentence, that
takes into account all the pluses and minuses in that particular
Defendant’s case.
I start with the statute itself. “The court shall impose a
sentence sufficient, but not greater than necessary, to comply with
the purposes set forth in paragraph (2).”
I must consider the nature and circumstances of the offense
and the history and characteristics of the Defendant. Well, in this
case I have essentially a nonviolent felony. On the other had, I
have a Defendant who has been no angel. He’s committed several
offenses for which he has been sentenced to various terms of
imprisonment and probation.
And looking at his individualized characteristics, I see
someone who has been in this country since infancy and who
originally came here legally, and what I don’t know is why his
parents never saw fit to have him naturalized; but as I said
earlier, because of the length of time that he has remained in the
United States, he is effectively an American. And so I don’t think
anyone should be surprised that he came back. We sent him to a
place as foreign to him as the moons of Saturn would be to any of
us who is lucky enough to claim American citizenship.
And so, as he says, he slept in cemeteries and lived out of
garbage barrels because he doesn’t speak the language and he
doesn’t have any support system or family in the Dominican
3/25/2006 10:20 PM
Republic.
It shouldn’t be a surprise that he came back. After all, how
many people from the Dominican Republic want to go back? The
only way they seem to go back from the United States is if they’ve
been deported, and so it’s not surprising that this Defendant came
back.
I look at paragraph (2) of Section 3553(a), and that requires
the Court to look at the need for the sentence to reflect the
seriousness of the offense, to promote respect for the law and to
provide a just punishment for the offense. As I have said here,
this is essentially a nonviolent offense.
This Defendant now knows that he can never come back to
the United States and that if he does, he will be sent to prison.
I must consider whether or not the sentence I impose will
afford an adequate deterrence, whether it will protect the public
from further crimes. Again I say this is a nonviolent offense.
And finally, I look at paragraph (2)(D) that talks about the
need to provide the Defendant with educational or vocational
training, medical care or other correctional treatment in the most
effective manner; and I think here that the Court may take into
account the length of the incarcerative sentence to be imposed
because, after all, the length of the sentence is a function of how
those items will be addressed, in particular with someone who’s
going to be deported at he conclusion of the sentence.
The kinds of sentences available. Well, the Government has
correctly pointed out to the Court that I do not have the authority
to suspend any portion of an incarcerative sentence. So I’m
limited to a sentence of probation or a term of imprisonment.
And finally, the kinds of sentences and sentencing range
established by the sentencing guidelines. Here, that range calls
for an incarcerative term of at least seven years or as much as 105
months.
Paragraph subsection (6) talks about the need to avoid
unwarranted sentence disparities among Defendants with similar
records who have been found guilty of similar conduct, and
paragraph (7) is really not applicable here. It talks about
restitution.
As I read Booker and as I read Section 3553, the sentencing
Court has an obligation to take all of those factors into account,
not giving any one any particular weight, but take them all into
2006]
3/25/2006 10:20 PM
601
account in looking at the human being who sits in this courtroom
who is the subject of the sentence I’m about to impose.
In this case, taking all of the facts that I mentioned earlier
into account, I find that an incarcerative terms of four years is
sufficient to carry out the objectives of Section 3553 without being
a sentence that’s greater than necessary to carry out those
objectives.
Four years is a very long time in anyone’s life. For this
Defendant, it will mean that he will have period of time to adjust
to the fact that he’s going to be deported, it will give him an
opportunity, hopefully, to learn Spanish well enough that he can
get along when he’s sent back to the Dominican Republic, that he
can perhaps educate himself as to what job prospects he might
have in that country and hopefully as well to gain some job
training so that he can successfully integrate into the society of
the Dominican Republic. After all, what we really want to achieve
here is to keep him out of the United States.
I find that a sentence at the low end of the guideline range
here, seven years, is greater than necessary to effectuate those
goals of sentencing. And so I have decided here not to impose a
sentence within that guideline range as the Government has
argued.
***

ROGER WILLIAMS UNIVERSITY LAW REVIEW VOLUME ELEVEN

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