On Bad Laws and Even Worse Judges
Michelle on teaching E.P. Thompson, three-strikes cases, with bonus unsolicited advice for people interested in law school
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Michelle:
Last week my Historical Foundations of Law class tore through Whigs and Hunters by the famed Marxist historian E. P. Thompson. (Okay, we just read the introduction and the last chapters, but they were very dense.) The book is about the Black Act, passed in the UK in 1723, which created over two hundred capital crimes. It made collecting wood, fishing in streams, poaching rabbits, stealing deer, cutting down trees, and stealing peat for fuel on private or royal property punishable by death. The Act got its name because would-be thieves or hunters or poachers often disguised themselves at night by “blacking” their faces, covering them in burnt cork or soot.
Before the Black Act, anyone, even those who owned no land, could take wood from or graze sheep on common land. But the process of enclosure—which created the enormous, decadent estates we see across England—kicked them off the land, converting it to private property.* The Whigs, who had just taken power and were solidifying their rule, portrayed “the Blacks” as Jacobites, revolutionaries trying to usurp the throne. (Outlander fans, remember when the time-traveling nurse warns her beloved redheaded firebrand, Jamie, that Stuart’s revolt will fail? The Stuart followers are Jacobites. Yes, I watch Outlander. I stand by it.)
If you think this Act is insane already—how can you hang a person for cutting down a tree?—now consider that judges expanded it beyond what it said outright. In the law’s preamble, our forefathers—common law took root around this time and was eventually inherited by the United States—say, in effect, “Let’s hang a person if he has disguised himself and poached a rabbit,” or “Let’s hang a person if he’s armed and has stolen wood.” But these judges, in their infinite compassion, moved to interpret the law even more broadly by removing the condition of that and: if you disguised yourself, you’d get hanged. If you were armed, even if you didn’t steal anything, you’d get hanged.
In the case of one Reynolds, a thirty-four-year-old collier,** the locals who made up the jury pool were so supportive of him that the prosecution had to move the trial to London. The judge, Lord Hardwicke, instructed the jury that it must find Reynolds guilty if he had been in disguise. (He had worn women’s clothing, a common disguise at the time, and carried a pickax.) Reynolds was indeed convicted, and protested before he was brought to the gallows that “he did not think that crime had been of so heinous a nature as to bring him to that unhappy end.” Here’s a gruesome description of his hanging:
He was cut down by the executioner… but as the coffin was fastening, he thrust back the lid, upon which the executioner would have tied him up again, but the mob prevented it, and carried him to a house where he vomited three pints of blood, but on giving him a glass of wine, he died.
Judges also expanded the law by creating an “aiding and abetting” doctrine. In a significant case, two poachers under prosecution for stealing a rabbit on a gentleman’s property sought revenge by killing his cow. One man held the cow while the other killed it. A Judge Foster, who emerges from the records as a good guy, was reluctant to execute the guy who held the cow, stating that the law “doth not by any express provision take in aiders and abettors.” But his fellow judges disagreed, and their view won out.
Because legal precedents are powerful, this comes to affect a large body of cases. A year later, seven coal-heavers are executed, even though three were unarmed. And twenty seven years after that, a man who cheered while his friends tore down a house also gets arrested and hanged. Common law enlarges itself. “Historians have paid too much attention to revolutions and too little to the creation of political stability,” concludes Thompson. “Stability, no less than revolution, may have its own kind of Terror.”
It’s no surprise that Thompson, passionate Marxist that he is, sees law as an instrument for the ruling class. But he concludes Whigs and Hunters on a provocative note, one that got him in trouble with other Marxists. Although “the law’s operation in class-divided societies has, again and again, fallen short of its own rhetoric of equity,” he writes, “the notion of the rule of law is an unqualified human good.” Law, that is, is a sham, yes. But not a total sham.
I am not starry-eyed about this at all. This has not been a star-struck book. I am insisting only upon the obvious point, which some modern Marxists have overlooked, that there is a difference between arbitrary power and the rule of law.
My students and I struggled through Thompson’s argument. How could he conclude in favor of the rule of law when he so clearly believes—and proves—that it’s a weapon the ruling class wields to accumulate wealth for itself and dispossess and punish everyone else?
In other classes I’ve taught, we’ve read the Supreme Court decisions upholding California’s “Three Strikes and You’re Out” laws, issued in 2003, which are the very definition of cruelty. For stealing three golf clubs worth $390 each, Gary Ewing received twenty-five years to life in prison. For stealing nine videotapes from Kmart, Leandro Andrade received fifty years to life. Both had previous felonies, for which they had already served their time; both argued that a life sentence for nonviolent theft was cruel and unusual punishment. But because the three-strikes laws were so strict toward recidivists, or repeat offenders, both men lost. (Read Justice Sandra Day O’Connor’s opinion upholding the California law if you feel like throwing up. “His grand theft,” she writes, referring to the three golf clubs Ewing took, “should not be taken lightly.”)
“Basically,” I concluded to my disgusted students, “a lot of judges are assholes. If you go to law school, please don’t become an asshole!” Thus ended my lecture.
Okay, I’m not that heavy-handed. We talked about the popular “victim’s rights” movement that underlay the three-strikes laws, and how the 1993 kidnapping and strangling of a young white girl, Polly Klaas, precipitated them. We talked about the Durkheimian explosion of collective outrage that follows violence against women and children, and traced the three-strikes laws in part to the racist backlash against the civil rights movement, increased procedural protections, and an expanding welfare state. We talked about a property-protective system that punishes theft harshly. And we discussed a public culture that reviles recidivists and a flawed democratic system that ratchets up punishment instead of providing release valves for anger and grief.
In retrospect, though, we didn’t talk much about the tortured legal rationale that actually preserved the incarceration of people like Ewing and Andrade. I had assumed the outcome was so manifestly unjust that law must be a mask for politics. But the more precise issue that divided the justices here was not so different from the dilemma that divided their counterparts two centuries earlier: which precedent to choose? The principle determining whether a punishment is cruel and unusual (and therefore unconstitutional) has to do with proportionality: put simply, a sentence must be proportional to the crime. O’Connor and four other judges chose one set of precedents to determine proportionality; the dissenters chose another.
At the center of O’Connor’s decision was a 1980 Supreme Court opinion by Justice Rehnquist upholding a life sentence for William Rummel, who had previously been convicted of and served time for fraudulent use of a credit card ($80) and check forgery ($28.36) in Texas. Because of the state’s strictness in punishing recidivists, Rummel went to prison for life sentence over a charge of theft, in the amount of $120.75.
Put another way, Rummel got a life sentence for theft that totaled $230; all instances were nonviolent.
Rummel argued that his sentence was cruel and unusual; Justice Rehnquist, along with four other judges, said it was not. The state of Texas, he found, has a significant interest “in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society."
So many judges are unimaginative, gutless, complacent, or just evil, and such opinions might make one wonder whether it’s worth bothering with the law at all.
But reading Thompson reminded me of why I went to law school in the first place, filled me again with admiration for friends who do this work day in and day out. Law is a site of struggle, Thompson writes; in an unequal, class-based society, it’s a site where defeat is more likely than not. But imagine what the kings and gentry would have done to common people if there had been no law at all.
Law is not just imposed upon men, he continues; they too make meaning through it. Every person has a sense of justice. The forester hunting the king’s deer for survival doesn’t see himself as a person without property—on the contrary, he asserts a customary, even ancient right to the land. Law is “a place of self-definition,” Thompson writes, which in turn creates the potential for collectivity. The hanged men “at least got to die together,” a student in my class observed. Even when a defendant loses, the argument he made at court may survive him. A judge might later recover it; you, reading this, may take his side as well.
The problem is not the law, Thompson concludes, but that “its notion has been betrayed by its own professors.” Unjust decisions still force villains to emerge in the open: prosecutors, judges. And in some cases, such decisions have unified people—as in the case of the mob that formed to protect Reynolds the collier. If law legitimizes the ruling class, it also exposes its cruel logic. The judge’s mind is exposed too, for its dullness, its tedious or torturous machinations, its lack of moral imagination. Law is part sham, but not all. The rhetoric of justice, Thompson says, will be taken up by those who hold power accountable. “If the rhetoric was a mask,” he writes, “it was a mask which Gandhi and Nehru were to borrow, at the head of a million masked supporters.”
*
The past four years, I think, have borne out Thompson’s view: Gen Z doesn’t doubt that law is one mode of struggle among many, and this is thanks in part to Trumpism. The ACLU mailing list sends out countless messages that begin “We’re suing Trump”; courts have litigated family separation, the Muslim ban, Remain in Mexico, DACA. My students agreed with Thompson’s final question: Why would we choose to “disarm” ourselves by abandoning law?
When students ask me whether they should go to law school, I say the usual stuff. Make sure you really want to go; wait a few years; be ready for debt. Know that law is a conservative institution. It’s slow, and requires lamentable amounts of contact with educated professionals for whom self-rationalization is the order of the day. Still, as a lawyer you have the privilege of performing remarkable acts of solidarity: stopping a deportation, exonerating a falsely convicted person, winning back wages stolen by an employer, and suing the two psychologists who designed the CIA torture program.
Reading Thompson also reminded me that we need historians, not just to learn the political forces that shape law but also to acquire the gift of perspective, the trick of detaching from the present and assessing it from the future. Whigs and Hunters helps me see the O’Connors and Rehnquists in our system almost as clearly as I do Lord Hardwicke and his brethren: compromised, trapped, on the wrong side of history.
With that in mind, one last bit of advice for those considering law school: shed any reverence you may have for judges. The robe means nothing; it’s a piece of cloth like any other. The only truth is in the work, in the justice of decisions made. As a law student, then a clerk, what surprised me most was the cloying sycophancy many of my classmates showed judges. Of course, there are exceptions: my judge, a Catholic lefty, was dignified and honest and could turn a sentence with brilliance and grace. (Perhaps every clerk thinks this of her judge.) When I was clerking, I wasn’t courageous enough to, say, tell Judge Murguia she was full of crap for trying to deport a guy just because he had a little marijuana on him—but I was never starstruck either. I savored the secretarial gossip about which judges were stingy (Justice Kennedy, apparently***) and which wore stinky cologne (Judge N. R. Smith). Some might say you should be civil to others, show some respect for tradition and order. But tell that to Gary Ewing or Leandro Andrade.
Of course, the idea that judges can be bad is already obvious to the people they screw over. But for the effetely educated and approval-seeking like myself, who grew up sheltered from the brutality of everyday life in local courthouses, knowledge can be easy to idealize. This can be wonderful, but it can also blind us to the fallibility of judges.**** The reverence for judges begins in law school, where the first-year curriculum consists entirely of analyzing their opinions, and springs from our unconsciously deferential relationship to the texts we’re assigned. In college we read scholars; in law school we read judges. Alas, Judge Rehnquist is no Edward Said and O’Connor is no Joan Scott.
All of this is to say: calibrate your moral compass prior to law school. Do it in whatever way feels true to your gifts. Whether through deep engagement with history, literature, or philosophy, or through embedding yourself in dispossessed communities, develop ethical commitments before getting thrown into the world of judges’ writings and doctrines. This is how you can equip yourself to see through nonsense and recognize cruelty.*****
After reading Thompson, I feel even more unequivocal in my condemnation of mediocre judges, but paradoxically I see more hope in the piecemeal struggles of the law—“the continuity of which,” Thompson writes, “cannot be fractured without bringing men and women into immediate danger.” To belittle the efforts of those using law as a mode of struggle is “to throw away a whole inheritance of struggle about law.”
Notes
* For a lucid explanation of enclosure and how it led to England’s unrivaled expansion of wealth, listen to the brilliant historian Margaret Lavinia Anderson’s lecture “Getting and Spending: England’s Industrial Revolution, 1760 to 1830” here. (It’s all great, but the relevant bit begins at minute 33.)
**A coal miner, coal deliverer, or other mine-industry worker.
*** In the august halls of the Court of Appeals for the Ninth Circuit, judicial assistants called him “Judge Cheapo.” Is it inappropriate to reveal this kind of thing? I’m not sure. In our most recent class on resistance and solidarity, Albert and I discussed James Scott’s description of gossip and rumor as ways to undermine the authority of the powerful. For the record, Kennedy voted with O’Connor to affirm Ewing’s life sentence for stealing three golf clubs.
**** That the judiciary is fallible may seem obvious now that Trump has appointed over 200 judges to the federal bench. But even as a clerk on the supposedly progressive Ninth Circuit in 2013, I was shocked by Obama and Clinton appointees who regularly denied asylum claims, deported people, or protected hair-brained law enforcement schemes with no relation to public safety at all.
***** This isn’t to say that law school is bankrupt of values; for me Carol Steiker’s death penalty course and the clinics I did provided a crucial space for action and reflection.
If you missed our inspiring conversation with Zakee Hutchison, whom we met while teaching at San Quentin Prison, it’s here. Zakee was released last April after serving 21 years for a nonviolent theft, under California’s Three Strikes Law.
Links for the Week
Read Eunice Cho’s powerful Washington Post op-ed on how the Biden administration must end ICE’s contracts with private prisons:
The Biden administration is reportedly considering an executive order to phase out federal contracts with private immigration detention facilities. The administration must make good on its promise to do so: ICE detention is a system plagued by rampant abuse, mistreatment and danger.
As various news reports have shown, lack of adequate medical and mental health care has led to serious harm to detained people, including loss of hearing and sight, amputations and suicide. Last year, the death toll in ICE detention centers reached levels not seen in 15 years. The use of force by guards, including pepper spray, physical force and rubber bullets, and the use of solitary enforcement have also increased.
For jazz fans, Jake Lamar has a wonderful piece celebrating the 35th anniversary of the film Round Midnight, which he calls the Citizen Kane of jazz movies. And don’t miss his piece on August Wilson in The New Republic.
More than 10,000 Hong Kongers were arrested in 2019 in connection with the pro-democracy movement. They face years of legal limbo and sentences of up to ten years. In one rioting case, the only evidence against defendants was that they were dressed in black and fleeing from police—an eerie callback to the Black Act being interpreted to punish anybody in disguise.
Here’s an interview with with Stanley Cohen, a radical lawyer who has been called “the most hated man in New York.” Our friend Noam Osband was one of the producers of the podcast.
In response to Ross Douthat’s column about liberal Catholicism, Heidi Schlumpf at the National Catholic Reporter writes that liberal Catholics “have been here all along”:
But progressive Catholics have been here all along. They are the gray-haired old-timers at church reform organizations and parishes. They are the young Catholics taking their first theology course at a Catholic college or university — and the theologians teaching those classes. They are the retired priests, sisters and even some bishops who have spent their lives working for social justice. They are Women's March marchers, Green New Deal supporters and Black Lives Matter protesters across generations.
When you see polls that say that more than two-thirds of U.S. Catholics have supported gay marriage since 2016, or that three-quarters of U.S. Catholics support government action to address climate change, or that 88% of U.S. Catholics would be comfortable with the ordination of women, you can't say that Catholics who are progressive — either socially or ecclesially — have been "suppressed."
If you missed last week’s post, where we let loose on Ross Douthat, here it is. (The key takeaway: Douthat invokes non-Western Catholics to score political points, but it’s not clear he knows anything at all about Catholics in Africa, Latin America or Asia.)
Last week, we referenced Michael Sean Winters’s deeply satisfying takedown of Ross Douthat’s book on Pope Francis and now would like to quote choice bits.
Here’s Douthat comparing Pope Francis to Trump:
The comparison to Trump is a fraught one, of course. Many of Francis's admirers have cast him as the anti-Donald and in certain ideological ways he clearly is — a populist of the left rather than the right, a defender of the rights of migrants who dismisses talk of a confrontation with Islam, a universalist and near-pacifist rather than a nationalist, and so on. But mirror images resemble one another even when the features are reversed, and as a ruler of the church, in the context of existing Catholic doctrine and discipline and norms, the pope has turned out to be far more Trumpian than most of the cardinals who elected him ever anticipated. Rome under Francis is much like Washington under Trump — a paranoid and jumpy place, full of ferment and uncertainty. Francis's opponents, like Trump's, feel that they're resisting an abnormal leader, a man who does not respect the rules that are supposed to bind his office. Meanwhile, to his supporters, as to many of Trump's, all these discontents are vindication, evidence that he's bringing about the changed required to Make Catholicism Great Again.
Winters responds:
No, Mr. Douthat, the Holy Father is not a vulgar, misogynistic narcissist with little learning and a short attention span. The Holy Father does not gratuitously insult poor and desperate refugees and migrants. The Holy Father does not revel in his power or gild the buildings he owns with his own name. Rome is not "a paranoid and jumpy place" just because Douthat's friends are paranoid. There is no "uncertainty" except for those few who fancied a scenario in which the Second Vatican Council would be rolled back bit by bit until we could all return to the Golden Age that was the 1950s. This is whole-cloth nonsense leading to a comparison that is, as I say, grotesque.
Book Club Date
Thursday, February 25th, 2:45 PM EST. We’re reading Tolstoy’s novella Hadji Murat. Email us for the Zoom link or leave a comment here.
If you can’t make this, come join us for the second book club during the last week of March. We’ll read Tanizaki’s The Makioka Sisters, which has been called the Japanese Middlemarch (Michelle’s favorite book of all time).
The joy of newsletters …
We’ve had a lot of new sign-ups recently, which is wonderful; if you’re new to the list, welcome. Please do write and introduce yourself. <3
Here’s reader Jeffrey Weng, a historical sociologist of China:
I really believe newsletters are a great way to keep in touch (and to keep us all thinking). One of the big characters I encountered in my archival research, linguist/polymath Yuen Ren Chao (趙元任 1892–1982), sporadically sent out "Green Letters," essentially professionally printed and bound pamphlets that contained family updates and sundry musings.
Newsletters, I think, fill a need somewhere between newspapers (too formal), holiday cards (too brief), and personal letters (too intense).
Jeff attached photos of Chao’s newsletter from 1923, which he took at the Chinese University of Hong Kong’s main library:
Next week, Albert observes a striking sea change in his classroom: Students overwhelmingly describe the atomic bomb as a war crime, when in years past they called it a necessity. Albert thinks through what is going on. For this reason and many more, we have a lot of hope in this new generation. Just this past weekend, our students organized a far-ranging conference on prisons, anti-authoritarianism, domestic violence, immigrant detention, and restorative justice; we hope to report back on this soon.
I was just reading about how enclosure in England related to colonization in America in this book. https://www.kpl.gov/catalog/item/?i=ent://ERC_215_348/0/OVERDRIVE:5255bc1a-21b0-4b04-bb56-7c40cf28656e
Interesting to read more about enclosure here.
Also, I watched all of Outlander last year and was obsessed :)