Original Lobster

I often find myself trying to explain “originalism.”  And in doing so, I find it helpful to build up a repertoire of good examples of linguistic meanings or expected applications that have changed in dramatic and memorable ways from the founding.  A dear friend has just called my attention to an excellent one, via the famous David Foster Wallace essay:

Up until sometime in the 1800s, though, lobster was literally low-class food, eaten only by the poor and institutionalized. Even in the harsh penal environment of early America, some colonies had laws against feeding lobsters to inmates more than once a week because it was thought to be cruel and unusual . . .

Hence, an illustration of originalism and the sense/reference principle: Even those who argue that the Eighth Amendment’s ban on cruel and unusual punishments should be interpreted in originalist fashion would not argue that it’s unconstitutional to serve prisoners lobster on a daily basis.  (Kashrut issues aside.) The Eighth Amendment’s meaning (sense) is unchanged unless it is amended, but the specific applications (references) may well be quite different.

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Do You Remember an Inn, Miranda?

The arrest of the Boston Marathon suspect has made “Miranda Rights” a trending topic on Twitter, as the authorities have apparently decided not to Mirandize him.  This has in turn put renewed attention on this old story about the FBI’s aggressive interpretation of the public-safety exception to Miranda, instructing agents to avoid Mirandizing terror suspects for as long as possible.

This prompts the question: why do law enforcement officers have any objection to Mirandizing terror suspects?  I can think of four possibilities.

1: Miranda really works. That is, there are suspects who would be prepared to give the police information, but after being told that they don’t have to, would decide to keep quiet. While this view appears to be the premise of Miranda itself, most people I know who are familiar with the criminal justice system don’t find it likely.  It would be highly surprising if this were true.

2: It’s not the Miranda warnings, it’s the Miranda rights.  I haven’t done enough research to know whether this holds water, but I wonder if the decision to delay Mirandizing also delays the various other rules that go along with Miranda.  Can a suspect who is in custody but not Mirandized still invoke his Miranda rights, along with the prophylactic rules that go with them?  Can that suspect’s refusal to answer questions be used against him at trial (pending Salinas)?  In other words, it might be that in addition to providing information, Mirandizing a suspect actually changes his legal status in an important way.  I don’t know if this is actually true and nobody has provided this as an explanation, but I have been wondering about it.

3:  It’s politics.  The administration is anti-Miranda because Lindsey Graham wants them to be, and the administration wants to find low-cost ways to make Lindsey Graham think they’re tough on terrorism.  I wouldn’t rule this out, but it doesn’t answer the question of why Lindsey Graham cares.

4:  Synechdoche.  Nobody cares about the Miranda rights themselves.  But Miranda is the iconic beginning of the criminal process, so Mirandizing somebody is a symbol that we might give them criminal due process rights, rather than military detention.  For those who think that military detention is tougher than criminal justice (and it’s not clear that’s correct, but lots of folks do seem to think it), fighting Miranda is rally just a publicly-digestible way to insist that the war on terror is a war, not a law enforcement operation.

Mammas don’t let your babies grow up to be tax lawyers

The most-emailed story on the New York Times webpage right now is this column from The Ethicist, discussing the ethics of being a tax lawyer:

I am a tax lawyer. Is advising wealthy companies of ways to reduce their tax bills through sophisticated legal structures ethically permissible? The structures take advantage of legal loopholes in the tax legislation.

The ethics of specific professions create unique realms of responsibility. In the same way that a defense attorney is ethically obligated to give his client the best possible defense — even if he’s convinced of the individual’s guilt — your principal responsibilities lie with the company hiring you. You need to do your job to the best of your abilities, within the existing rules. You should, however, voice your moral apprehension about the use of such loopholes to the company you represent.

I have to say, I find this answer odd. I think The Ethicist is actually on to something when he generalizes from the case of providing legal assistance to wealthy companies to the case of providing legal assistance to the indigent facing prison time. But then he adds that you “should” (ethically, I gather?) exhort your clients not to take advantage of the legal options you just advised them about.

Would anybody say that to a criminal defense attorney? Would anybody say that you “need to do your job to the best of your abilities” to defend your client zealously before trial, at trial, and at sentencing, but that you “should, however, voice your moral apprehension” about your client’s conduct and tell them that the honorable thing to do is confess and go to prison? Surely not. At least, I hope not.

In the criminal defense context, I think we all manage to understand that passing moral judgment on one’s clients (and telling them so!) is simply not the lawyer’s job, let alone the lawyer’s ethical obligation. Yet in other contexts, we seem inconsistent about this. Think, for example, of the many arguments that Gabriella Blum takes on in this superb essay about legal ethics and the war on terror, where she argues that critics “have missed a fundamental point about the attorney-client relationship. It is the client–in this case, the government–who is ultimately responsible for making policy decisions, not the attorney.”

Just so. We ought to distinguish more between the task of providing advice about the law and the task of providing advice about the right thing to do.

“I’m not a cop … I’m her father.”

An episode of Castle I watched last night (“Target”) perplexed me slightly. Normally I don’t think it’s fair to subject fictional procedurals to the actual details of American constitutional law, but the last time I researched a point of procedure relevant to an episode of Castle (the law of juvenile interrogations) I was surprised to learn that the episode had gotten it exactly right. This time, I’m not so sure.

The scene: Richard Castle has a personal stake in finding a missing person, but the (wounded) suspect refuses to talk. While still at the crime scene, Castle convinces his partner to leave him alone with the suspect. When the suspect insists again that he knows his Miranda rights and is invoking them, Castle forebodingly points out that he is not a police officer, just a private citizen who’s a father of the victim. Offscreen, Castle basically goes “Dirty Harry” on the suspect (we hear screams, Castles emerges with the information).

So one reaction is that Castle’s claim not to be a state actor is highly questionable. Can the police really circumvent the 5th and 6th Amendments by bringing the victims’ families along, then putting them in a room with the suspects they wish to interrogate? The practice seems obviously suspect on its own.

But my bigger problem is with the inconsistency this would create. Let’s suppose that it’s true that Castle acts as a private citizen in these encounters where he accompanies the police. Even if that’s so, then doesn’t his presence in this warrant-execution, and nearly every home search in the show, violate the Court’s ruling in Wilson v. Layne? Wilson held “that it is a violation of the Fourth Amendment for police to bring members of the media or other third parties into a home during the execution of a warrant when the presence of the third parties in the home was not in aid of the execution of the warrant.” If Castle’s presence is in aid of the police conduct (plausible), then he is almost certainly subject to the limits on police interrogations; if it is not, then he is almost certainly in violation of Wilson.

Of course, there are presumably state laws against hurting people in order to extract information from them, so maybe the answer is just that Castle is a lawbreaker and doesn’t care. (“If you touch me I’ll press charges” // “I don’t care.”) The interrogation was unlawful but they’re counting on the victim not to sue and pressing charges only in French courts.

A World Without Gideon

How many Supreme Court decisions can you name that are both thoroughly entrenched (i.e., virtually nobody wants them to be overturned, and indeed many people would be upset if they were overturned) and plainly inconsistent with originalism (i.e., even originalists don’t have a plausible defense of the decisions– not something like the air force or Brown, where non-originalists are the ones who insist on the inconsistency)? Gideon v. Wainwright, now fifty years old, is the best candidate I can think of.

The blogosphere and journals are full of celebrations of Gideon— and of course one can see why it is celebrated. But would a world without Gideon really be so bad? Kent Scheidegger notes that even before Gideon, some governments provided appointed counsel. And Doug Berman speculates that Gideon actually made it easier to enact punitive drug laws that burden the poor. Moreover, we shouldn’t forget how low the funding and quality are for some of the legal representation that exists only because of Gideon. Nor should we forget that (at least under the current system) pro se defendants often do better than represented ones.

Finally, I think we should ask what kinds of non-governmental organizations would exist in a world without Gideon. I understand from folks who have tried that it is very very hard to raise money or political action for criminal defendants, especially poor ones. But I wonder if that would still be true in a world where that was the only way to fund basic defense counsel– might the folks who currently poor money and resources into (say) fighting the death penalty poor it into a group of lawyers to defend the indigent accused of more mundane crimes? Maybe not, or maybe not enough. But in my more pessimistic days I wonder if the results would really be worse than what we’ve got.