65th Installment. The state-bars’ public-protection myth & the misguided remedy of suspension

The state bars' official purpose centers on public protection, but the state bars' real purpose has always been punishment and deterrence. The mischaracterization serves both public-relations and legal purposes.

The public itself doesn't see state bars as functioning for protective purposes. A recent Los Angeles Times editorial expresses the common attitude of the public:

Whether Yoo or Bybee breached legal ethics in that way has been the subject of an investigation by the Justice Department's Office of Professional Responsibility, which can recommend discipline to state bar associations. That process, not a civil suit for damages, is the best way to hold lawyers accountable for malpractice.

http://tinyurl.com/mvyt4z

This is the widely accepted popular view: state-bar discipline holds lawyers accountable; but holding accountable isn't a public-protective function. Accountability is the essence of deterrence, the primary function of punishment, and a component policy behind civil-litigation procedures.

When state bars claim their purpose is public protection, the bars focus only on the severity of detriment, on which its opinions, as well as those of the courts of record, dwell. A punitive system should match severity of deterrent to offense's seriousness and inversely to probability of apprehension. A protective system, in contrast, should match preventive measures to likelihood of committing further harm. Neither courts nor legislatures analyze the class of disciplinary measures serving the screening function assigned to state-bar discipline: most notably, what role does graded discipline serve for a system supposedly protective? Punishment by degrees of severity suits a deterrent or retributive system, where punishment should fit the crime.

Suspensions play no rational role in a protective system because character defects aren't time limited. Courts surreptitiously slide into a deterrence-oriented mental set when they impose suspensions. Deterrence is secondarily protective, confusing the issue when the state bars insist they are not deterrence's instrumentalities. The public accepts punitive but unprotective disciplinary measures, such as suspensions, because of tacit recognition that civil litigation insufficiently deters.

Understanding that state bars provide a deterrent that the Legislature can't abolish without replacement is a first step both in compelling the state bars to stick to actual public protection and reforming the laws governing civil litigation so they deter attorney misconduct. Attorneys today are already subject to a few civil sanctions for technical misconduct. When an attorney improperly divides a fee, it is forfeit. That's enough deterrence to render the state bar rule against fee splitting — hardly an index of moral turpitude — unnecessary for deterrence's purposes. This law illustrates how to deter the range of technical misconduct falling short of moral turpitude: relieve the wrongdoer of his ill-gotten gains. The mechanism can be widely applied to the gamut of misconduct violating rules and statutes deemed administratively necessary for the profession. If the attorney, for example, engages in unlawful solicitation, allow the solicited party's refusal to pay attorney fees, enforceable in the civil action or in the underlying action. Wrongdoing not involving moral turpitude in the strict sense shouldn't concern the state bars, and moral turpitude should have only one disciplinary consequence, disbarment. Disbarment is the only disciplinary measure serving a strict screening function; limiting discipline to disbarment follows from limiting the state bars to the protective function they claim as exclusive domain.

The expressed policy of public protection, not the actual policy of deterrence and retribution, is the correct policy, but the public-relations myth of state-bar dedication to public protection forms the basis for denying state-bar respondents the protections favoring criminal defendants. Proof before state bars need not be beyond a reasonable doubt, and a jury doesn't find culpability. In state bar matters, proof is in principle by clear and convincing evidence; a respondent in reality is lucky if afforded a preponderance-of-evidence standard. Prosecutors decide that a case goes to trial, one sub-Article 6 judge decides the facts, and state-bar respondents can't plead self-incrimination when inculpating matter concerns only state-bar charges. These practices would never survive constitutional scrutiny if courts recognized that state bars mete out punishment.

kanBARoo Court. 37th Installment. Moralism: A Synthesis

Attentive readers will have wondered whether I would ever get around to defining "moralism." Perhaps I was unaware that I hadn't provided a definition or even failed to notice the meaning was not evident, although involving replacement of positive law with moral claims. A more refined but still preliminary definition is moralism asserts quotidian moral norms should decide legal outcomes.

Psychoanalytically, moralism expresses the archaic super-ego, the Freudian punitive and primitive unconscious conscience, organized around desert through the talion (eye-for-an-eye) principle. The 35th Installment related moralism to capital punishment, and I claimed moralism includes the tenet holding some deserve to suffer; insists capital punishment be punishing; and insists suffering penalize lesser misdeeds. These tenets comprise desert, prominent in conventional morality. In the same Installment, I called capital punishment regressive moralism's extreme; it takes desert furthest. The 36th Installment holds moralism responsible for laws barring insurance and indemnification for intentional torts, because the measures prohibited interfere with desert. In the 33rd Installment, I claim moralism denies the right to demand trial. The talion principle so insists, as the defendant didn't give his victim a trial.

Only partly overcome by lawyers, moralism is the natural way we think about punishment. The moral compulsion is sufficiently instinctive that bureaucratic reflex expresses and harnesses it. The moral compulsion's mental presence is sufficiently vivid to support widespread reification in a naïve moral realism, which holds that moral facts exist. The 6th Installment maintained that strident moralism obfuscates issues, helping justify bureaucratic reflex. Conventional moral feelings color and obstruct thought by their tenacious grip and, as habitual thought patterns, they coincide with bureaucratic reflex. The 32nd Installment says that the State Bar distorts civic discourse wherever the Bar imposes its bureaucratized moralism. By incapacitating the analytic faculty, moralism prevents rational discussion.

Deciding legal outcomes by primordial moral norms produces inferior legal outcomes because the process strips proceedings' limitation by the law of evidence, the law of procedure, precedent, informed statutory construction, and public policy. Everyone understands the first four, but public policy is easily confused with morality. While desert calls for punishment consistent with the severity of the infraction, current public policy is mostly dedicated to deterrence, and deterrence demands not only a positive relationship between punishment and an infraction's severity but also an inverse relation to the probability of apprehension. Desert demands that capital punishment punish, while a strong public policy against torture, defined as any unnecessary infliction of pain, calls for only painless executions.

In my case, one must labor to apply the distinction between moralistic and policy-governed prosecutory practices, when contemplating the prosecutrix stealing documents from the case file. Even moralists gag on her conduct. This is why the prosecutrix’s malfeasance will carry weight, even in the hypermoralistic atmosphere of appellate State Bar Court case review.

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.]