kanBARoo Court. 35th Installment. Moralism: The State Bar, Capital Punishment, Euthanasia, and Suicide

As 1990 approached, two resource demands overwhelmed the California Supreme Court. Added to some 40 annual State Bar Court opinions (see 30C Installment), automatic appeals of capital sentences also burgeoned and today stand at about 20. The Supreme Court, which writes 110 to 115 opinions per year, dealt with the press of State Bar cases by permitting itself opinionless reviews. Today the court seeks to do what dissenting Justice Kennard had meritoriously suggested for its Bar cases—farm them out to the Court of Appeal. Automatic appeals of capital cases continue to increase, up 66% since 1985, and the Supreme Court currently has an incredible backlog of about 400 cases already briefed awaiting oral argument.

Despite California supposedly being a progressive state, California citizens support an execution system with a higher federal-reversal rate than many other states (see "A Broken System:Error Rates in Capital Cases, 1973-1995"), and its citizens support the executions. California imposes capital punishment for numerous offenses, not just unusually heinous murders. Killing a police officer gets death, as does a kidnapping in which the victim dies or causing a train wreck producing death.

California embraces capital punishment, and it now moves toward strengthening its commitment by instituting a less weighty review. The source of California's backwardness regarding capital punishment may be the same as that of its uniquely uncontrolled State Bar Court system, and the reasons Bar cases overloaded the California Supreme Court may explain its capital-case overload, both problems arising from moralistic excess. The State Bar promotes the devolution of legal sophistication into moralism, while capital punishment is regressive moralism's extreme. Thus, if this blog's thesis is correct—the State Bar embodies moralistic legal backwardness, which functions as a unified trait of the legal system—then the moralistic excesses of the State Bar help fuel the California mania for capital punishment.

Although citizens approve of capital punishment because they believe some criminals deserve to die, legal scholars officially justify it as a supposedly effective deterrent. Unquestionably, the prospect of a lethal injection would deter, if imposed with sufficient frequency, certainty, and swiftness. But procedures eschewed by civilized society could more effectively deter criminal acts. As a poster to Chicago law professors Becker and Posner's blog pointed out, beheading would prove a stronger deterrent than the lethal injection. (See http://tinyurl.com/6awaxm) Data are lacking about the deterrent effect of a reliably painless death penalty. Scholars debate the technology, purportedly in the interest of humane punishment, yet one should suspect other motives because of measures no one dares propose. Tellingly, prisons deny an oral sedative before the execution. California has passed a medical marijuana law, but no one has proposed affording prisoners the right to smoke to relieve their pre-execution anxiety or to avoid the pain of bodily puncture, by staff unconcerned for the prisoner's comfort. Such pain-avoidance proposals would meet an indignant outcry by all factions, revealing execution's ultimate premise: perpetrators of horrendous crimes should suffer.

The U.S. Supreme Court recently reviewed lethal injection as a cruel and unusual punishment because lethal injections sometimes cause excruciating pain. (See Baze v. Reez (2008) _U.S._.) Critics from both sides of the capital punishment debate argued the emphasis on execution method misplaced, but the U.S. Supreme Court's initial focus on pain was as insightful as its holding shallow. As organisms we avoid pain, but we cannot conceive of or weigh our death, logically incommensurable with life. Yet, the extent lethal injection's deterrence depends on its actual and potential pain remains unanalyzed. The court had no qualms about a method of punishment that regularly inflicts some pain, but any infliction of pain is cruel, unless the unthreatingness of a painless death defeats not only capital punishment's moralistic motivation but also its utilitarian rationalization. One might go so far as to ask, if painless, would execution serve as a deterrent or an incentive? Suicide is common; as recently revealed, some 12,000 Iraq-war veterans attempt suicide per year. But suicide's most constant feature is search for the least painful means.

Moralism, including its tenet that some deserve to suffer, insists that capital punishment actually be punishing, that it consist of more than mortality. Moralistic ideology also insists that suffering penalize lesser misdeeds, hence rejecting euthanasia. Moralism demands that capital punishment must not become euthanasia.

[See, also, "Morality Series" in Juridical Coherence.]

kanBARoo Court. 34th Installment. disHONNest Judge

Judge Honn's awaited disbarment recommendation arrived Monday, relieving me of the chore of compelling the State Bar Court’s issuing this precondition to California Supreme Court review. The 24-page recommendation was a cut-and-paste job from fragments our prosecutrix composed. In response, I extend a warm invitation to both the prosecutrix and the Good Judge to consult my other blog, Disputed Issues, where they can extract advice about finding a much needed legal ghostwriter.

Judges are less intellectually honest than most of us might prefer to believe. Judicial tactics in a close case, for example, include omitting important facts supporting the other side. (See for example, Odom v. South Carolina Department of Corrections (4th Cir. Dissent 2003) 349 F.3d 756 ["Finally, in addition to its selective recitation of facts and mischaracterization, the majority omits entirely to recite perhaps the most critical facts from Odom's allegations that ultimately prove the reasonableness of the actions taken by all of the defendants, and Taylor in particular."])That judges are not possessed of greater intellectual honesty disappoints, but while omitting discordant facts in court opinions isn't exceptional, intentionally misstating a party's position is. A court may misunderstand a legal theory, and as I discuss in my other blog, incomprehension is a frequent unwanted result of common litigation tactics. (See for example, "Emotionalization.") The magnitude and direction of the misrepresentation, when compared to the information available and the depth of review claimed, proves intentional deception outside judicial norms. Judge Honn's comparable performance in the Richard Fine case also supports this criticism of the court's integrity. There, the court failed to present Fine's contentions, despite Fine's unmistakeable clarity. In the Richard Fine series (see 30th Installment to 30C Installment), I summarized:

Judge Honn's 72-page opinion differs from similar documents in other courts by the absence of respondent Fine's legal and factual contentions. Judge Honn presents the findings in full comprehensiveness, dwelling on the smallest details of what the court claims transpired, while he provides scant indication of the issues and none of Fine's contentions. The omissions are giveaway that justice is not being done. (30th Installment. The Richard Fine Matter and the Moral Turpitude Travesty.)

In Judge Honn's Fine recommendation, the court held it had no duty to respond to Fine's contentions, an evasion that still doesn't explain the distortions in the court's opinions. The court misleads about my position by misstating explanations I provided to defrauded persons and the court, as when Judge Honn states:

Instead, in his response to attorney Kim, he [respondent] disavowed any knowledge of Yoo's case, claimed that he was not her attorney, never had been her attorney and owed her no duty, and blamed his office staff for the misconduct. Respondent claimed, further, that he had recently fired Kim and staff upon discovery they had signed medical liens without his permission." (Judge Honn, Decision, p. 5.)

By out-of-context paraphrase, Judge Honn dissembles my disavowal of duty to supervise staff. Rather, I contended consistently to defrauded persons and to the court, a small subset of the public served at my office comprised defrauded persons distinct from clients, with whom I had an attorney-client relationship. Staff handled defrauded persons' cases conspiratorially, including communicating about those cases only in Korean. As I wrote on penalty of perjury in my original motion to dismiss the Notice of Disciplinary Charges:

Kim, Shin, and colleagues plotted undetected by respondent by using their native language for office communication. Respondent—relying on his clients to report any complaints, problems, or anomalies—thought the absence of client complaints verified the operation’s correctitude and did not entertain the possibility that each and every employee would cooperate in keeping Kim’s operation secret. Kim had only recently hired most of the staff, whom Kim and respondent instructed on respondent’s ultimate authority. When respondent finally received a complaint from Scott Meyers, Esq., despite the fraudulent and extortionate character of Meyers’s demands, respondent immediately investigated. Finding he could not rely on his staff, respondent promptly closed his office. (17th Installment, Original Motion to Dismiss.)

kanBARoo Court. 33rd Installment. Remorselessness

Criminal law has regressed in the past thirty years, retreating toward the quasi-religious weighing of a defendant's virtue. In the federal courts, for example, sentencing guidelines include mitigation for "taking responsibility" for one's crime, the seventeenth century idea of remorse expressed in nineteenth century jargon. As in most legal matters where doctrinal asphyxiation effects oppression, the State Bar establishment is in the forefront, remorselessly pushing aggravated discipline for remorselessness to curtail the respondent’s right to argue the merits.

The legal problem in aggravating or mitigating sentences based on the defendant’s degree of remorsefulness is its irrelevance to any reasonable purpose for imposing punishment, despite the U.S. Constitution's requirement that the means of allocating punishment have some rational justification. California justifies using remorse because courts universally use it as a factor in sentencing. (See People v. Hinton (2006) 38 Cal.4th 389 ["The presence or absence of remorse is a factor universally deemed relevant to the jury's penalty determination."].) Universality, however, does not entail rationality; other legal practices are universal yet transparently irrational, an example being the universal practice of punishing the successful commission of crime more than an attempt. Other common arguments favoring factoring the court's appraisal of a defendant's remorsefulness into sentencing rest on psychological theories that would never survive a Kelly-Frye hearing. Moralists contend encouraging remorse furthers rehabilitation, a two-step argument that fails at both points — guilt following wrongdoing relates but weakly to conduct; extrinsic rewards and punishments produce paradoxical effects on motivational state.

Problematically for the universality argument, courts differ profoundly on how to incorporate remorse into sentencing. Courts disagree, for example, on when a defendant should display remorse to obtain redemption. If a defendant delays the display of remorse, does the delay prove genuine remorsefulness, because it followed a period of reflection, or does it express insufficient remorsefulness, because defendant had already shown himself remorseless? Such variance suggests conflicting theories of remorse's induction and its relation to conduct, rendering universality as little consolation to moralists as the cultural universal of belief in God or gods imparts to any specific faith. The jurisdictional differences in conceptualizing remorse suggest using remorse judicially rests on commonality of sentiment or psychological press rather than a judicial or folk-psychological concensus on remorse.

Remorse-based sentencing, unscathed by its scientific irrationality, is embedded in our criminal justice system. Judicial controversy arises only when remorse's use as a sentencing factor adversely affects the exercise of trial rights, such as penalizing a defendant who fails to show remorse while claiming innocence.The jurisdictions, including the federal circuit courts, have split on whether failing to show remorse counts against a defendant before a contested verdict's finality; this practical disagreement concerns whether the courts can hold a defendant pleading not guilty to its standards for remorsefulness. Several federal circuits allow the court to withhold points for acknowledgement of responsibility from the defendant protesting innocence, and according to commentators, the usual practice in such jurisdictions is simply to award or deny points in mitigation based on the plea. (See for example, O'Hear, M. (1997) Remorse, cooperation, and 'acceptance of responsibility': the structure, implementation, and reform of section 3E1.1 of the federal sentencing guidelines. Northwestern Univ. L. Rev. 91, 1507.) The most common argument from courts endorsing these practices is to distinguish these lost points for remorse from a true penalty, because they merely fail to offer a benefit. As the Third Circuit pointed out, no court has shown a principled distinction between withholding a benefit and imposing a penalty, and the U.S. Supreme Court holds that opportunity losses, such as denial of a Government job, are tantamount to penalties, undermining the more moralistic jurisdictions’ perversely formalistic reasoning. (See U.S. v. Frierson (3d Cir. 1991) 945 F.2d 650; Roberts v. United States (1980) 445 U.S. 552, 557 n. 4 ["We doubt that a principled distinction may be drawn between 'enhancing' the punishment imposed upon the petitioner and denying him the 'leniency' he claims would be appropriate if he had cooperated."].)

Because most cases that uphold using alleged remorselessness against defendants contesting charges rest on formal-distinction-without-a-difference subterfuge, the best-reasoned case for using remorse as a sentencing factor, even when it stacks the incentives against the exercise of constitutional rights to trial and against self-incrimination, draws on a line of Supreme Court cases distinct from the penalties cases. In the plea bargaining cases, where defendants contested the validity of plea-bargaining inducements to forgo trial, the Supreme Court found plea bargaining imposed no penalty on defendants exercising their rights. The Fourth Circuit reconciled the apparently contradictory cases by distinguishing the conditions under which loss of a reward was not tantamount to a penalty. The court termed the reward for pleading guilty, offered through plea bargaining, incidental to another purpose: to offer leniency for remorsefulness. (See United States v. Frazier (4th Cir. 1992) 971 F.2d 1076.) But the Fourth Circuit mischaracterizes plea-bargaining, since demanding trial is not a peripheral consequence of judicially-conceived remorselessness but operationally forms its principal component. Demanding trial in many jurisdictions is presumptive and almost conclusive evidence of lack of remorse. (See for example, United States v. Beserra (7th Cir. 1992) 967 F.2d 254, 255 [Guilty plea normally a necessary condition for the reduction.].)

Plea bargaining has been lauded for showing leniency to the remorseful, but the argument for judicial cognizance of defendants’ remorsefulness is weaker than the practice defended. The market for plea bargains is a bilateral monopoly, with the prosecutor enjoying disproportionate bargaining power, and prosecutors will threaten with their draconian options in the name of remorse and personal responsibility. Plea-bargaining, however, can be distinguished from the use of remorse as a sentencing factor by the former's allowing settlement based on the state of the evidence before trial. A prosecutor’s plea-bargaining offer should be a reasonable estimate of the punishment multiplied by its likelihood of imposition, not whatever sentence the prosecutor can coerce a defendant to accept.

You get a sense of how the State Bar plays its remorse card from the prosecutrix's document, “State Bar’s Opposition to Respondent’s Motion for reconsideration and for Immediate Stay,” published in the 21st Installment, where the prosecutrix contends, prior to any determination of guilt, “Aggravating factors include a member’s indifference toward rectification of or atonement for the consequences of his misconduct.” Even under California’s flawed laws on using remorsefulness in sentencing (see People v. Holguin (1989) 213 Cal. App. 3d 1308, 1319 ["Lack of remorse may be used as a factor to aggravate under California Rules of Court, rule 408 unless the defendant has denied guilt and the evidence of guilt is conflicting"]), California has recognized the prosecutrix’s machinations as an impropriety of constitutional dimension, since the California Supreme Court held in People v. Coleman that a prosecutor could not draw inferences for lack of remorse from a defendant’s failure to admit guilt. (People v. Coleman (1969) 71 Cal.2d 1159, 1169 ["We conclude that any argument that failure to confess should be deemed evidence of lack of remorse is not permissible."].)

The remorse factor functions openly in the State Bar Court as a litigation weapon wielded by the prosecution, expressing with less camouflage and sophistication the appetite driving criminal law's moralistic relapse. The conflicts with basic trial rights are not incidental but central to the motives driving the new moralism. The moralists recouped in the sentencing phase what they lost in the guilt phase, when the courts prohibited punishment for asserting the right to trial.

(See also 63rd Installment. Review Department: Remorseless Demagogues Lamenting Remorse's Absence.)