In this Information Age, it is hard to grasp sometimes that everybody does not know everything. And yet it is so. It is common knowledge, for example, that dinosaur fossils are the bones of creatures that lived scores of millions of years ago, that terrorist hijackers flew planes into the World Trade Center and the Pentagon, and that eyewitness identification testimony is statistically as reliable as a ’78 Chevy. And yet there are tons of people who sincerely believe that fossils are just a few thousand years old, that the U.S. government conducted 9-11, and that an eyewitness I.D. is the be-all-and-end-all of Truth.

Actually, it’s not fair to lump the I.D. believers in with 9-11 conspiracy theorists, Genesis literalists, truthers and the like. The others are sort of fringe-y. But if you put 12 ordinary citizens in a jury box, of good intelligence and sound common sense, and the victim points dead at the defendant and says “there is no doubt in my mind, THAT is the man who raped me…” you can almost hear all twelve minds slamming shut. They’ve heard all they need to hear. So far as they’re concerned, this case is over.

This despite the fact that study after study after study reinforces the fact that eyewitness testimony sucks.

And innocent people go to jail — or worse — because of it.

So you can imagine how keen the legal world was to get the Supreme Court’s decision in Perry v. New Hampshire, which came down yesterday. Perry, identified by an eyewitness as someone she’d seen breaking into cars, argued that Due Process required a judicial hearing on the reliability of that testimony before it could be admitted at trial.

Which was the exact wrong thing to argue.

Due Process requires that the government makes sure that it does not do things that make its identification procedures unreliable. It does not require that a judge do the jury’s job. Particularly when that job — weighing the reliability of a given bit of testimony — is incredibly fact-specific.

And especially given all the evidence of all the various factors that go into making eyewitness testimony unreliable — racial differences, time lapse, focus of attention, lighting, familiarity, stress, presence of a weapon, etc. — what judge in his right mind is going to want to be the one deciding whether this particular eyewitness’s memory is good enough?

So it’s hardly any surprise that the Supreme Court balked at Perry’s Due Process argument. By a vote of 8-1 (former prosecutor Sotomayor as the lone dissenter, none better to know the power of the EW ID) the Supremes held that, unless law enforcement is alleged to have gotten the I.D. under unnecessarily suggestive circumstances, there’s no Due Process issue and certainly no reason for a pre-trial hearing on reliability.

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No, what Perry could have argued for is either (1) a rebuttable presumption, as a rule of evidence, that eyewitness testimony is inadmissible; or (2) allowing defendants to provide jurors with all the reasons why eyewitness testimony is not as reliable as they might think.

The first option is, frankly, stupid. But it’s the logical conclusion from the givens presented in his argument and those of the various amici, that eyewitness testimony is about as per se unreliable as it gets. If we can be forgiven a straw man here, it’s akin to the proscription against most hearsay. Hearsay is not permitted unless it’s deemed exceptionally reliable. So why not have the same rule for eyewitness testimony? Because hearsay is not prohibited because of its unreliability. It is prohibited because it cannot be tested, cross-examined, challenged. It’s a confrontation issue, not a reliability issue. Hearsay that is allowed comes in because it is so reliable that confrontation just isn’t an issue (in theory). Evidence is not precluded because it is unreliable. If something is unreliable, it is up to the other side to make sure the jury sees how unreliable it is.

As Justice Scalia implied during oral argument, unreliable eyewitness testimony is no different from any other unreliable evidence. But in practice, it is treated very differently. Sure, a judge might let the defense attorney cross-examine the witness on the lighting conditions, whether she had a gun in her face, and whatnot. And maybe the judge will let him make common-sense arguments to the jury in his closing about why that identification was wrong. But few if any will allow the defense to put on expert evidence demonstrating why this particular testimony might be wrong.

Eyewitness testimony is almost unique in this regard. Any other evidence the government might put on, the defense gets to put on its own evidence of why the government’s was wrong. Their expert says the stolen trade secret was worth a billion dollars? Your expert can testify why it was worth $12.98. Their witness says the bullet was fired from the apartment across the street? Your expert can show that it came from down the block and was deflected on striking the window. But if their witness testifies that she recognizes your client as the guy what done it, can you put on an expert to show that people of her race distinguish faces by looking at features that aren’t all that variable in people of the defendant’s race? Or that almost nobody with a gun shoved in their face in a dark alley for five seconds is going to form a clear memory of what the shover’s face looked like? Or that now, three years later, after countless retellings and waking nightmares and reassessments, the witness’s memory is nowhere near as accurate as it seems?

In most states, the answer is No. It’s either prohibited, or it’s up to the discretion of a trial judge, who’s likely to say no. (And the usual reason for prohibiting such testimony, irony of ironies, is that it’s such common knowledge that expert testimony is unnecessary.)

What Perry should have argued for, then, is to do exactly what Scalia suggested: treat eyewitness testimony like any other kind of testimony. Give defendants a chance to pry open those minds that snapped shut during the in-court I.D. Give defendants a chance to confront the evidence against them in a meaningful manner. When everyone in the world except for jurors, apparently, knows that eyewitness memory is godawful, give defendants the chance to educate them, at least to the extent that it applies to that particular case. While you’re at it, let jurors be instructed on factors affecting reliability if you like (as suggested by the majority opinion), but if you believe jury instructions make a difference one way or the other…

It’s not a Due Process issue. It’s a Confrontation issue. Allowing the defense to confront eyewitnesses and challenge their presumed accuracy is the issue. It’s not about shifting the fact-finding role to a pre-trial hearing, to assess things beyond the government’s process. Perry’s argument strikes us as not only stupid, but a waste of a perfectly good opportunity to have made some progress in this area. As it is, we may now be stuck in the status quo a few years longer than we might have been.

Thanks a lot.

Injustice is what we’re getting. The newspapers are starting to pick up on it lately, but it’s been building for a long time. People getting prosecuted for federal felonies, when all they did was unwittingly violate some obscure regulation, without any intent to break any law.

Wanda: What would an intellectual do?  What would… Plato do?

Otto: Apol-

Wanda: Pardon me?

Otto: Apollgzz.

Wanda: What?

Otto: Apologize!

Well, no.  He probably wouldn’t.  Not Plato.

And certainly not in the case of Troy Davis, whose final clemency request was denied this morning, and who now faces execution tomorrow evening for the killing of a police officer in 1989.  He was convicted at trial 20 years ago, but since then the reliability of that verdict has been called into serious question.  Seven of the nine major witnesses recanted their testimony, many claiming that the police pressured them to give false eyewitness accounts.  No forensic evidence ever tied Davis to the crime, the murder weapon was never found.  In the intervening years, ten new people have come forward to point the finger at another individual known to have been present at the scene.

So it’s possible that Troy Davis might not have shot the officer.  It’s possible that he might have.  Twenty years of second-guessing and changing stories make it uncertain.  But what is certain is that he was convicted, and that the conviction stands.

Should we be troubled by this?

We started pondering this after our kids’ bedtime story the other night.  We were reading to the lads from the Dialogues of Plato [what, you got a problem with that? Shut up, these are not your children.], specifically the Crito.  That’s the one where Socrates has been condemned to death, and his friend Crito shows up to talk him into escaping.  Boiled down to its essence, the Crito runs something like this:

Crito: Wake up, Socrates, we’re busting you outta here!

Socrates: What are you, an idiot?  You can’t do that.

Crito: No worries.  All the bribes are arranged, the travel’s all taken care of, and you have your choice of local city-states all ready to welcome you with open arms.  Let’s blow this Athens joint and get back to freedom and philosophy!

Socrates: Use your head.  Living is not what’s important.  Living a good life — one that is just and honorable — is what’s important.

Crito: Yeah, but…

Socrates: And it’s not just or honorable to try to escape, because that would violate the will of the state that condemned me.

Crito: Aha, but it was unjust for the state to condemn you.

Socrates: Don’t you “aha” me.  The state provided for my entire existence, educated and protected me, and by living here my whole life I’ve entered into an unspoken contract to abide by the state’s law.

Crito: Yeah, but…

Socrates: Shut up.  Justice requires the rule of law.  No man is above the law.  If you start making exceptions for famous philosophers, or for people who can afford bribes, then there is no more rule of law.  Justice disappears, society crumbles, and everyone suffers.

Crito: Yeah, but…

Socrates: So if I break out of here in violation of the state’s law, then I’ll be the bad guy.  I’ll be the enemy of good government.  When I arrive at Thebes or Thessaly, I will come as an enemy of their good government, too.

Crito: Yeah, but…

Socrates: Think of it this way — I’m taking one for the team.  Yes, I’m suffering from an individual injustice.  But that’s the price you pay sometimes for the general justice of society.  If I didn’t pay that price, we’d all suffer.

Crito: Team!  Team!  Team!

Socrates: That’s the spirit.  Now can I go back to sleep, please?

Okay, so after reading this to the kids (and succeeding in our goal of getting them to go the **** to sleep, already), we started wondering if Plato was right about all this.  After all, individual injustice is still, you know, unjust and all.  Wouldn’t it be proper to break the rules to ensure individual justice?  And that got us thinking about Troy Davis.

The rules are keeping him on death row.  The rules will, absent some remarkable and unforeseen intervention, result in his death tomorrow night.  But we’ve got 20 years of hindsight giving us real doubts that he’s guilty.  The rules also say we don’t punish someone unless their guilt is proven beyond a reasonable doubt, and there’s reasonable doubt all over the place now.  It would be an injustice to execute someone whose guilt is so ridden with doubt.  Doesn’t the enormity of that individual injustice warrant breaking the rules to prevent it?

Plato (speaking through Socrates) would clearly say no.  And our system, our jurisprudence, says no.  Because when push comes to shove, the goal is not individual justice.  The purpose has never been individual justice.  It’s always been justice in general, not in particular.

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Of course, our system tries for individual justice.  Defendants are judged on a case-by-case basis.  It’s terribly inefficient, but that’s how we do it.  We don’t just round up the usual suspects or behead every tenth person.  We treasure the right of the individual to be free from arbitrary and abusive governmental action.  That’s all the Declaration of Independence, the Constitution and the Bill of Rights are saying.  The government can hurt you real bad, and so we make the government obey the rules before it does so, to prevent it from hurting you just because it can.  So we decide each case individually, with rules of evidence and constitutional rights and statutory obligations all designed to make sure the might of the state is coming down on you justly.

Though we strive for individual justice, it’s recognized that mistakes get made.  Guilty people escape punishment, and innocent people get convicted.  We try to minimize that, but it happens.  There are rules in place for the undoing of wrongful convictions.  They’re not perfect, but they are the rules.

But if all the rules were followed, and you’re still wrongly convicted?  Well, at this point your interest in individual justice gets trumped by the goal of general justice.

“Finality” is a big concept here.  At some point, everyone has to move on.  Turn the page, close the book, it’s over.  The system is inefficient enough as it is, without allowing people to revisit each case over and over again until they get the result they like.  Society can’t be expected to bear the burden of retrial after retrial — new cases would never get tried, justice would be denied, because we’d be too busy going over the same old cases.

That’s all our criminal justice system really does:  It closes the book so everyone — accused, victims, witnesses, authorities — can get on with their lives.  The jury decides on an official version of the facts, based on what the government could prove rather than on what really happened.  Nobody expects this official version of the facts to be the whole truth.  It’s just something the system can work with, apply the pertinent laws to, and issue the appropriate punishment or dismissal — so everyone can get on with their lives.

In Troy Davis’ case, the official version of the facts is that he killed that police officer in 1989.  It may or may not be the truth — nobody knows but him — but that’s not what’s important.  What’s important is that the government was able to prove, beyond a reasonable doubt, that he did do it.  Whether they could prove it again today is not what the system and its rules are looking at any more.

He may be taking one for the team, then.  Being killed by the rules of the society in which he lives, which are designed to ensure general justice.  If the rules were to be broken for him, then they could be broken for the next guy, and we’d all suffer.

That’s what our jurisprudence says.  That’s what Plato would say.

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And they’d be wrong.

Because one thing that our jurisprudence and Plato routinely ignore is the simple fact that perception is everything.

If the system is perceived to operate in a just fashion — if the people pretty much see it as protecting the rights of the individual and in general getting things right when deciding guilt and innocence — then the system works.  Crime is deterred by the assurance that it is punished accurately.  The laws are generally respected and obeyed because they are seen to be just and to be justly applied.  Society runs smoothly, and the law is doing its job.

But if the system comes to be perceived as unjust — even if in reality it’s as fair as could be — then society falls apart.  If the laws are seen as someone else’s laws, unfairly applied to this community, then the people of that community will lose respect for the laws and be more likely to break them.  If the laws are seen as disproportionately applied to some people as opposed to others, then they are no longer seen as just.  If the system comes to be seen as arbitrary, uncaring and cruel, then the law fails in its purpose.  Fear, not one’s own sense of right and wrong, becomes the primary reason to comply with the law.  That way lies social upheaval, riot and revolution.

In a world like ours, where the rare injustice is what makes the headlines and gets people talking, the risk is that the one-off will come to be seen as the norm.  If the occasional injustice comes more and more to be seen as the norm, rather than the sad exception, then everyone suffers.

The goal of general justice would die, because the perception of individual injustice killed it.

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Socrates didn’t want to be the exception who broke the rules to achieve individual justice, because that would have corrupted and undermined the stability of his society.  But in today’s world, making exceptions and breaking the rules, in order to preserve a general perception that our system is a just one, is probably something worth considering.

First, a shameless plug: Tomorrow, we’ll be participating in a Dow Jones webinar for Private Equity and VC types, discussing how the current environment of insider-trading prosecutions affects them, and what they might do about it.  (Link here, if you’re interested.)  Of course, those guys aren’t so much the focus these days as, say, hedge funds and the expert networks that help them make investment decisions.  ”In the spotlight” doesn’t begin to describe it.  Not a week goes by without some major news about insider trading allegations in the hedge fund world.

With all that reporting, and all the various cases that are going on, one might think the issues are pretty well understood by now.  But they’re not.  Not even by the very people who are doing the prosecuting and investigating, it seems.  It so unclear that a month ago the Managed Funds Association formally asked the SEC for guidance on what is and is not kosher when dealing with expert networks.  “Our industry would like to know where the sidelines are right now so that we can stay well within them,” MFA president Richard Baker said at the time.  “The trouble is the referees aren’t quite clear where those lines are.”

Amen.  Nobody knows where the line is between lawful and unlawful conduct.  The feds themselves admit it.  And yet they are prepared to prosecute people for crimes, when the public has no way of knowing that such conduct was criminal.  Even an investigation is enough to destroy a reputation, wipe out a career, erase a business.  A conviction will take away a real person’s liberty and rights.  Americans don’t allow their government to do that in a gray area.  But it is happening.  How that is not a serious violation of basic due process is beyond us.

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Expert networks are a fairly new thing.  It used to be that research was conducted by analysts who were more akin to investigative journalists than anything else.  They poked around, talked to people, and tried to piece together useful information about a company’s value or where an industry was headed.  The goal was to gain an insight that had value — something that wasn’t obvious to everyone else analyzing the public information.  Then along came Regulation FD, and all that changed.

Reg FD came about in 2000 as an attempt to clarify what buy-side research analysts could and could not do.  Research analysts served a useful function, of getting pertinent information out there into the market, resulting in more efficient pricing, and a more efficient allocation of capital.  The problem was that this information was not generally broadcast, but only shared with a select few.  And a company’s management only talked to the analysts they liked, which often enough meant those who gave favorable reviews of the company.  There was a kind of tit-for-tat relationship, where analysts only got access if their reporting helped the company’s stock price.  (The journalism analogy is fairly strong.)  Management was making information public, but only to those who had gotten access.  Reg FD basically says you can’t do that, any more.  If the info is material, then it cannot be disclosed selectively.  It has to be generally broadcast.

Trying to suck up to management is still okay, under Reg FD.  You can still invest shoe leather, phone minutes and greens fees in trying to winkle out some better information.  But if the information is material, management is going to have to disclose it in an FD-compliant manner, basically making it public to everyone.  (If it’s not material, then it’s still okay to disclose selectively — even if it’s the last piece of a puzzle that enables you to come up with a highly material insight.  ”Immaterial” nonpublic info is something that’s not important to the normal, reasonable investor.  But this is still a huge gray area.  This is essentially the “mosaic” theory, that many bits of immaterial info can be pieced together to form a mosaic that is material as hell, but that still doesn’t mean the individual disclosures were material.  It’s debatable whether this theory is going to prevent the SEC or DOJ from launching an investigation, but there’s a strong argument to be made that the person disclosing the info, at least, cannot be liable.)  Anyway, the idea is that requiring info to be disclosed in an FD-compliant manner basically undercuts the whole point of using analysts in the old-fashioned way.

At about the same time, hedge funds started doing business a lot differently.  There were more of them, transacting dramatically higher volumes than ever before, and trades were happening way faster and more often.  Old-fashioned analysts aren’t as compatible with large-scale rapid-fire trading.  Using analysts in the old-fashioned way just didn’t make as much sense as it used to.

So the “expert networks” came along as a replacement.  These were essentially consulting services that would get experts from various fields, and get them analyzing what’s going on in their respective niches.  Hopefully, they’d be able to piece together valuable insights from the public information that’s already out there, and help the funds place better bets.

That’s not a bad idea.  Seems pretty good, in fact.  Everyone’s working off the same public information, but you can pay for insights from people who can better interpret what that information means.  You might be buying or selling with a counterparty who has a better insight than you, but that’s not the same as being defrauded by a buyer/seller who has secret information that you don’t have access to.  In other words, it’s not insider trading.

But, of course, there’s a wrinkle.  Some of the experts in these expert networks were still employed by their respective companies.  There was a risk that some of them might be disclosing nonpublic information to those paying for their analyses.  That can potentially turn into an insider-trading situation.

That risk can certainly be minimized.  Public companies can and should have controls and oversight to ensure that no nonpublic info gets disclosed by employees who are moonlighting as experts.  And buyers of the information, like hedge funds, can have policies of not buying info about company X from someone who works for company X.  (A weaker solution, adopted by some hedge funds, is to get a written promise that the experts won’t violate the securities laws.  That’s not going to be much protection if the law still gets violated.  It’s not going to make the insider information any less insider.)

Still, there’s a risk of wrongdoing.  And there’s a big uncertainty as to whether expert networks are inherently suspect.  One might think that they are, given the surprising number of insider charges the feds have filed in the past few months involving expert networks.  And it’s no secret that the entire industry is freaked out at the possibility of being investigated or charged just because of the use of expert networks.

The feds did make some statements recently, in an attempt to assuage these fears.  For some reason, these statements haven’t gotten a lot of press (though businessinsider.com had a nice summary a couple of days ago).  Though the reason might be that the feds didn’t really clear anything up.

On Feb. 3, an SEC press release about yet another expert network case said that “it’s legal to obtain expert advice and analysis through expert networking arrangement.”  So far so good.  But right before that, it said this case was part of “the SEC’s ongoing investigation into the activities of expert networks that purport to provide professional investment research to their clients.”  (Emphasis added.)  That’s a loaded sentence, and reveals a predisposition to think that expert networks are bad.  All this does is increase the fear that the feds are going to see insider trading where none occurred.

Similarly, in a Feb. 8 press conference for the latest roundup of insider trading charges, the SDNY U.S. Attorney Preet Bharara made a prepared statement that expert networks are not “inherently wrong or bad.”  It’s just that these particular defendants had a business practice that was inherently wrong.  But he opted not to discuss what is wrong or right about a situation where an expert network uses an employee of company X, even with company X’s permission.  He acknowledged that it’s still a “gray area.”

So Robert Khuzami spoke up.  Khuzami, the head of enforcement for the SEC, sent a warning that hedge funds dealing with expert networks had better do some serious due diligence, to find out whether the expert network uses employees of company X.  And if so, to make sure no material nonpublic information gets received.

In other words, there’s an affirmative burden to make sure the information you receive is not private.  Which is bizarre when there is no way to know that, in many cases, unless you’re privy to inside information.  It’s a Catch-22.

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So there’s a huge “gray area” as to whether expert networks are kosher or criminal, as they currently exist and have existed for the past decade or so.  In theory, they’re lawful, but in practice the government sees them as only “purportedly” lawful.  And if you happen to use them, and you get inside information — info you couldn’t have known was secret if you weren’t an insider — too bad, so sad.  You had a duty to know the unknowable.  Maybe.

There are far too many unknowables here.

Isn’t this a classic due process violation?  For the government to be allowed to use its might to deprive individuals of their liberty, property and livelihood, the public had better damn well be on notice that the conduct is something that’s going to get punished.  If the public could not have known that certain conduct was unlawful, the government cannot be allowed to punish it.

And if the government itself doesn’t know where to draw the line…?

We wrote recently on our distaste for those on the defense side who persist in playing games.  It should go without saying that it is far worse for the prosecution to play games.  And yet it happens all the time.

Ideally, when the prosecution has done its job right, it’s going to be holding all the cards.  If those cards are good, there’s little reason not to show them early and convince the defense to fold.  It saves everyone the expense and burden of litigating and trying a case that ought to just plead out.

And if those cards aren’t so good, then fairness requires that they still be shown.  Simple due process requires that a criminal defendant — someone whose life, liberty, reputation and property the government intends to destroy — be told when the government has evidence that might help him defend himself.  If such evidence is in the government’s possession, it’s not realistic to believe that the defense would ever discover that evidence.  Law enforcement is rarely willing to share information with the defense.  And even with evidence from other sources, the defense never has anywhere near the resources and ability of the government to discover that evidence.  Anyone who thinks the two sides are fairly matched in this regard either has no experience, or no active brain cells.

So that’s why we have the Brady rule.  Prosecutors are supposed to give the defense any evidence possessed by the government that might help the defense at trial or at sentencing.  It’s a great rule, but the problem is that prosecutors often have a hard time following it.  And they get away with it plenty, because it’s not like the defense was ever going to learn of the existence of that evidence.  And they have absolute immunity from civil suit for their Brady violations.

What happens often enough, unfortunately, is that prosecutors try to game the rule.  Any game-playing by a prosecutor is abhorrent, beyond unethical, as it abuses the overwhelming power of the government.  But gaming the very rule intended to prevent such game-playing is perverse.

How do they do it?  One simple way is to just not hand it over, secure in the expectation that the defense won’t ever find out.  The prosecutor can justify this by claiming it wasn’t really Brady material.  Perhaps they spin it as something that isn’t really helpful to the defense, as if their perspective is the only correct one.  Perhaps they spin it as just discovery-type stuff, which unfortunately is not discoverable at this time, if ever.  Or they can just cross their fingers and hope nobody ever gets wise.

Another way to game the rule is to claim ignorance.  There may in fact be exculpatory evidence, but law enforcement never let the prosecutor know of it, and the prosecutor didn’t try all that hard to look for it, if at all.  That’s no excuse — law enforcement is the government, and what it knows is imputed to the prosecution — but the prosecutor’s failure to obtain the information keeps it out of the defense’s hands.

Another way to game the rule is to rely on an office’s “open-file discovery” policy to make the defense think they’ve received everything they’re entitled to, when in fact the critical evidence was either withheld, knowingly excluded from the prosecution’s file, otherwise not made part of the file, or deemed “not discoverable.”  This game involves a level of deception, essentially lying to the defense that they’ve been given everything.

An “open-file discovery” policy can also be used to game Brady by just dumping a warehouse full of documents on the defense, without highlighting where the potentially exculpatory evidence might be found.  The closer in time to trial this happens, the worse it is.  But it’s intellectually dishonest for the prosecution to claim “we gave it to them, it’s not our fault they didn’t spot it.”

A particularly nasty game gets played when the defense has reason to believe the evidence is out there, but for some reason — such as when it’s possessed by the police — the defense isn’t able to get the specifics.  So the defense notifies the prosecution, and the prosecution claims not to have a Brady obligation, because the defense already knows about the information.  This also happens when the prosecution tells defense counsel that the defendant was there, so go ask him what happened.  That’s not the rule.  If the defense actually possesses the evidence (or could reasonably get it), then there’s no need for the prosecution to provide a second copy.  But anything short of that imposes an affirmative duty on the prosecution to collect and share that evidence.  Prosecutors like to hide in the penumbra of what a defendant might, with reasonable diligence, discover on his own.  But that’s avoiding a constitutional duty, not complying with it.

There are any number of other games that get played — like all the procedural obstacles that get thrown in the way of post-conviction attempts to establish actual innocence — but these are all examples we’ve come across in our own experience.  Suffice it to say, prosecutors are playing games with people’s lives all the time.

So it was with some cautious optimism that we saw the resolution that the American Bar Association adopted today, basically telling courts to devise detailed laundry lists of things that count as Brady material in their courthouse, and to provide them to prosecutors and defense counsel in the cases that come before them.  If adopted, this practice would make it at least more difficult for prosecutors to claim ignorance of material that could have existed.  And it would make it easier for defense attorneys to spot particular bits of police paperwork and other kinds of evidence that they might not have known to ask for, if not disclosed.  It would help the hard-working defense lawyer to root out the Brady that might be there, and it would help the ethical prosecutor collect such material that they might not otherwise have obtained.

Here’s a link to the resolution, and to the ABA Journal’s report, and we’ll paste the full text here:

RESOLVED, That the American Bar Association urges federal, state, territorial, tribal, and local courts  to adopt a procedure whereby  a criminal trial court shall, at a reasonable time prior to a criminal trial, disseminate to the prosecution and defense a written checklist delineating in detail the general disclosure obligations of the prosecution under Brady  v. Maryland, 373 U.S. 83 (1963), and its  progeny  and applicable ethical standards.

FURTHER RESOLVED, That the American Bar Association urges  federal, state, territorial, tribal, and local courts in implementing the above procedure to require a criminal trial court to create a standing committee of local prosecutors and criminal defense attorneys to assist the court in formulating and updating the written checklist delineating in detail the prosecution’s general disclosure obligations.

FURTHER RESOLVED, That any omissions or deficiencies in the written checklist provided by the court should not relieve either the prosecutor or defense counsel of their legal and ethical responsibilities with respect to providing and seeking disclosures.

Now let’s see if it has any effect.

Sex offender registries aren’t necessarily a bad idea.

For whatever reason, there are certain people who get off on molesting little kids or raping people, and who are not likely to be rehabilitated by a stint behind bars.  It’s how their sex drive is wired. If they get caught and go to prison, they’re not any less likely to stop doing it when they get out.  That’s not how sex drives work.  So they often reoffend.  To minimize this, we put their names on a list, make them register with the local police department, impose restrictions on where they can live and what they can do.  They’re basically on extremely limited parole for the rest of their lives.

Their lives are basically over.  The stigma is the worst our society can dish out.  There’s a fat chance of pursuing any meaningful employment or making something useful of one’s life.  The best that can be said for such an existence is that it’s not prison.

Of course, with people who have demonstrated a clear and present danger, for whom there is a real and realistic concern that they will victimize another child if given half a chance… well, their interests don’t weigh so much any more.

But are these people really the ones who get registered?

Here in New York, a 17-year-old kid can wind up on the registry for having sex with his 16-year-old girlfriend.  A jerk can be registered for grabbing someone’s ass.  Stuff that has nothing to do with sex, like even the mildest forms of unlawful imprisonment, gets you marked a sex offender.  A harmless loser will find himself on the registry for calling up a call girl.  There really isn’t any rhyme or reason to it any more.

These are not things that have anything to do with the policy underlying sex offender registries.  There is zero concern that the people who commit such offenses pose a present threat of molesting kids or committing rape.  It’s an unthinking response.  It’s a panicked “oh my God think of the children” shouted by people who aren’t actually thinking of the children.

It’s a huge expansion of governmental power, for no good reason.  It’s one of the worst penalties the state can impose, and it’s mandated for some of the most minor offenses we’ve got.  Clearly, something is wrong.

Fortunately, when the criminal law is stupid, or would have an unjust result, prosecutors have the discretion to do the right thing.  We give prosecutors enormous powers to decide whether to charge a crime, what to charge, and what plea and sentence most cases will get.  With that power comes the discretion to use it wisely.

So prosecutors have the discretion not to charge registry crimes.  Or to take pleas to non-registry crimes, when no policy is served by putting a particular defendant on the registry.  But oftentimes, that’s not what happens.  An overblown crusader might insist on a registry offense, because by God they’re offended at what happened and want as much punishment as the law will allow.  Some prosecutors have a big-government, big-brother attitude — the arrogant belief that they know what’s best, and the best thing is to have long-term intense supervision of someone whose conduct, though not dangerous, offended their sensibilities.   But more prosecutors simply don’t think it through at all.  They don’t know what the underlying principles are, they don’t understand the purposes and the real-life effects, and they don’t care.  Right or wrong, it’s a registry offense, so on the registry you go.  They fail to exercise their discretion at all (and by so doing, they abuse that same discretion, hardly ethical conduct).

So, unfortunately, when the criminal law is stupid, or would have an unjust result, you can’t count on the prosecutor to do the right thing.

New York isn’t alone in this.  It has become a routine injustice across the United States.  People who have no business being on a sex offender registry wind up there, and their lives are destroyed.

And it’s really a civil bit of bureaucracy, not a criminal punishment, so the same protections don’t apply.  Ex post facto nonsense is perfectly fine.  And there’s no need for due process to determine actual risk, before taking away one’s liberty.

A few years back, in Michigan, there was that case of Justin Fawcett.  A teenager, one of many seduced by a teenage girl who described herself as a sexual predator.  He was over-charged to begin with by a prosecutor who thought that “consensual” sex among promiscuous teenagers was a felony worthy of putting the kid on the registry till well into middle age.  Only after public uproar did the prosecutor back down and agree to a non-registry deal.  The deal was struck, the kid got probation, and he went about getting his life back.  It was tough, but he was doing it.  Time passed.  Then the news came out that the state was going to put him on the registry anyway.  He’d be a registered sex offender for the next 25 years.  He’d only been alive for 20.  His life was over.  So he killed himself.

Was there any reason for his life to be  over like that?  Was he a predator, a child molester, a rapist?  Nope.  Was he someone we needed to worry about, someone who posed a threat to the safety of others?  Nope.  Was there any reason for him to be on a registry?  Nope.  No reason other than the fact that an unthinking government said this particular act gets you on the registry.

That was back in 2004.  Michigan may have changed its rules somewhat since then, but New York and others are still just as bad or worse.

We’re registering a lot of the wrong people.  For the wrong reasons.

Odds are, if you’re reading this, you’ve lived an admirable life.  You applied yourself in school, got a good job, and worked hard to be a valuable member of your community.  Through your own efforts, you’ve probably earned a position of respect and responsibility.  Maybe you run your own shop, or you’re a partner in a firm, or you’re a military officer.  Your ethics are beyond reproach.  You’re raising your kids to be loyal, kind and brave.  You, dear reader, are doing everything right.

And you, dear reader, can very easily find yourself in the defendant’s seat.  In the crosshairs of a federal or state prosecution.  Facing serious prison time.

For what?  For nothing, that’s what.  You yourself may have done nothing wrong, but our criminal law has devolved so far, so fast, that you can find yourself being prosecuted anyway.

The worst effects can be seen in federal law.  As the regulatory state has expanded, as the “nanny state” has expanded, as the role of the federal government has expanded, the nature of federal criminal law has changed dramatically.  Stuff that nobody in their right mind would consider “criminal” has nevertheless been made into a federal crime, not just by congressional statute, but by regulatory fiat.

Regulatory crimes are the worst, because agency regulations are never drafted by people with a background in criminal law.  But Congress passes a lot of statutes that happen to contain criminal provisions, none of which actually get reviewed by anyone who knows diddly about it.

And they keep ratcheting up.  Elected officials who want to look “tough on crime” love to be able to point to new criminal laws or penalties they enacted.  More liberal types are just as bad, if not worse, believe it or not.  In our lifetime, the Left has discovered that criminal law is an amazing tool to accomplish the social control that Americans won’t let them achieve through other means.  Both conservatives and liberals are at fault.  And they’re both hypocrites, at the same time.  Conservatives, ostensibly opposed to intrusive overreaching government, intrude and overreach in order to seem tough on crime.  Liberals, ostensibly champions of civil rights, trample those rights in order to advance their regulatory agenda.  Mutual opponents, both sides of the aisle nevertheless unwittingly cooperate to screw us all.

As a result, there are now so many federal crimes that literally nobody knows how many there are.  There is not a single person in the world who knows how many things are crimes under the myriad federal statutes and regulations.  The federal government itself can only estimate the number of criminal provisions currently in force.  The latest estimate — and again, it’s only an official guess — is that there are somewhere around 4,500 crimes in the statutes, and roughly 300,000 regulatory provisions with criminal penalties.  Over the past decade, Congress alone has been adding more than 50 new criminal statutes each year.

Have you read all 4,500 statutes and 300,000 regulations?  Do you know what actions can land you in prison?  Destroy your life?  Take away your reputation, your living, your liberty, and everything you’ve ever striven for?

No?  Well, too damn bad.  Ignorance of the law is no excuse.

-=-=-=-=-

But wait, you say.  Sure, nobody’s read all the laws out there, or even knows how many there are.  But it shouldn’t be too hard to figure out what kinds of things are criminal.  One of the astounding beauties of our Anglo-American jurisprudence is the fact that we don’t punish accidents.  We don’t subject people to criminal punishment even for simple negligence.  We only punish people who were being bad.

There are two things required for something to be so bad, in our culture, that it needs to be punished.  First, there must be a bad act — someone must be harmed.  This is usually a variant of lying, cheating, stealing, or injuring.  Stuff that’s none of the above is probably not a crime.  Second, there must be a culpable mental state — it can’t have been purely accidental or negligent.  You had to have been naughty.  Either you were trying to do it on purpose, or you knew (or should have known) that it was probably going to happen.

That’s it.  That’s all there really is to it.  There are arguable exceptions like call-girl prostitution (victimless, so no bad act), or statutory rape (honest mistake as to age is no defense), but precisely because they are so exceptional, everyone knows about them and is at least on notice.

The problem is that the people writing the laws — especially the agency regulations — are, with all respect, completely ignorant.  More specifically, they are perfectly ignorant of the basic principles underlying our criminal law.  They don’t know why one thing is punishable as a crime and another thing remains firmly in civil law, or if either law even ought to speak to it.  They have zero comprehension of why act X is punishable and act Y is not, or why act Z is punishable but not as much.

If any regulation-writers happen to be reading this, here’s how it works:  Punishment is reserved for those who personally committed a bad act, and did so with a culpable mental state.  For any given act, the severity of the punishment increases with the culpability of the actor’s mental state.  Someone who did X and fully intended X to happen gets punished the most.  Someone who didn’t intend X to happen, but knew it would happen if he did Y, gets punished a bit less.  Someone who expected that X probably would happen, though they didn’t know for sure, and it wasn’t their intent, gets punished a bit less.  We say that people acting with these mental states are acting … wait for it … “intentionally,” “knowingly” or “recklessly.”

People writing the various statutes and regulations, however, completely fail to use any consistent set of terms to describe what counts as a punishable act.  This leads to tremendous confusion among even professional lawyers and judges who have to interpret what these crimes are.

Even worse, however, they typically just leave out the mental state altogether.  In the regulatory world, an astounding number of crimes are crimes of “strict liability.”  That means, even if you acted perfectly innocently — if you had no intent, knowledge or even the slightest reason to suspect that X might happen — you are nevertheless guilty of a federal crime, facing federal prison, if X happens to occur.

(And if it’s a federal crime, it’s probably a federal felony.  There are an astonishingly small number of misdemeanors in federal law, none of which seem to apply to real people.  But that’s a topic for a whole nother post.)

In addition to most regulatory crimes being “strict liability” offenses, we also have a concept of “managerial” or “enterprise” liability, where you can be liable for the action of someone else.  Even if you had no idea they were doing it.  Even if you’d done everything in your power to prevent it from happening in the first place.  The feds do not care how careful you were to prevent it.  It happened.  You’re getting prosecuted.

You did everything right.  And it doesn’t matter.  They don’t care.  You’re looking at federal prison.

-=-=-=-=-

So, without Americans even realizing it, we’ve gone from a principled jurisprudence of malum in se crime, to an unpredictable regulatory fiat of malum prohibitum.  In other words, stuff is no longer criminal because it’s wrong, but because some bureaucrat says it’s a crime.

That, combined with the growth of “managerial” liability despite the best controls to prevent rules from being broken, and the failure of rule-makers to comprehend the concept of mens rea, has led to a truly unjust state of affairs.

We are witnessing the end of the distinction between torts and crimes.  We are witnessing the end of the distinction between crimes and mere failure to comply with a rule.

Elected officials are at fault — many of them lawyers who ought to know better — for failing to even read the crap they vote for, and for trying to look tough on crime instead of trying to ensure justice.  They just delegate all that to the discretion of the prosecutor.

Regulatory bureaucrats are at fault, for failing to understand what the hell they’re doing, and for trying to enforce compliance with their countless little rules with the biggest fucking hammer in the government’s toolbox.  They just delegate all the necessary interpretation and responsibility to the discretion of the prosecutor.

And prosecutors are at fault, because all these stupid crimes are (by definition) easier to prosecute.  They don’t have to prove mens rea.  They don’t have to prove any of the stuff that they’d ordinarily have to prove in order to have a person found liable for a criminal act.  All they have to prove is that X happened.  Easy peasy.  And ambiguously-written laws?  The DOJ has never met an ambiguous law it didn’t like.

So they abandon their discretion.  They take that easy case.  A few may truly be so stupid or deluded as to believe that they’re doing God’s work in sending you to prison for failing to put the right mailing label on that package, or for being the poor sap with a managerial position when one of your employees disobeyed your directives and did something stupid.  But most aren’t that stupid, really.  They’re just lazy.  They elect not to exercise their discretion.  And failing to exercise that discretion is, as a matter of law, an abuse of that discretion.  So they’re committing prosecutorial misconduct in so doing.

So it’s, uh, kind of a mistake for the politicians and bureaucrats to be delegating justice to the discretion of the prosecutors.  Nevertheless, that’s what’s going on.

-=-=-=-=-

So what needs to change?  Remarkably little.

First, there needs to be a standard language — not unlike the Model Penal Code — so there is some uniformity among all the criminal statutes and regulations out there.  The huge variety of terms being used to define any given mens rea and actus reus is so non-uniform that nobody can really be on notice of what they mean.  (Sounds like a Due Process violation, if you ask us.)

Second, nothing should be criminalized without the say-so of elected officials.  Unelected bureaucrats should not have the power of creating crimes, exposing us all to the worst penalties our government can impose.  If it’s important enough to subject someone to criminal punishment, then it’s important enough to require legislative action.  And (unlike now) the Judiciary Committee needs to actually read the criminal provisions and okay them.  Nobody reads these things now.  Seriously.

Third, prosecutors need to be held to their ethical requirements.  There is too much opportunity for their discretion to be abused, if only by disuse.  We criminal defense attorneys need to make these arguments firmly.

(And of course, a return to more conservative values of less government intrusion into private affairs would be nice, too.  But let’s try to keep things realistic.)

It looks like we spotted the trend.  Unfortunately.

Last week we noted that, when faced with an ambiguous statute, some on the Supreme Court are now willing to read new language into the statute, rather than toss it back to Congress to do it right.  And we wondered if that might be a harbinger of what was to come in the “honest services” cases of Black, Weyrach and Skilling.

Well, those cases came down this morning, and sure enough the majority decided to read in new language, rather than toss out the statute for being vague.

It’s great for the defendants, whose honest-services convictions got tossed.  But to get there the Court had to change the rules.  Now, judicial invention is a perfectly acceptable method of statutory interpretation… so long as the new language is what “everybody knows” the statute really meant to say.  And that’s bloody dangerous. 

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We’ve been paying close attention to this issue (see other posts here, here, here and here), as have many others, because the feds love charging people with honest services fraud.  It’s so vague and open-ended, that it potentially criminalizes any activity that’s outside one’s job description.  That makes it a great catchall when you can’t prove something more substantive.  But it’s also not at all what Congress intended.

“Honest services” fraud was originally a judge-created law.  There wasn’t any statute criminalizing it, it just sort evolved via common law, accepted in all the Circuits.  But we don’t do common-law crimes in this country, for one thing, and the mail fraud statute didn’t say anything about intangible rights, so in 1987 the Supreme Court threw out the common-law version of honest services fraud.  If Congress wanted to criminalize it, then that was up to Congress.

The idea was pretty simple: If you had a position of trust, and you abused that position for private gain (say, by taking bribes or kickbacks), then you were depriving people of the services you ought to have been giving them had you been honest.  You were getting paid under the table to do your job wrong.  So in 1988 Congress came up with 18 U.S.C. § 1346.

But the language didn’t say anything about abusing a position of trust.  Instead, it just said that fraud included a scheme “to deprive another of the intangible right of honest services.”  And didn’t define what “the intangible right of honest services” meant.

And nobody knew what it meant.  That’s how prosecutors liked it, because real-life corruption charges are notoriously difficult to prove.  It’s hard to get solid evidence of bribery and kickbacks, especially when the only real evidence would have to come from the parties themselves.  But if the feds could skip all that and just charge a mail/wire fraud, based on this amorphous intangible thing nobody really understood, then they could prosecute all they want with just the barest modicum of evidence.  And so they did.

But now, in the Black, Weyrach and Skilling cases, the Supreme Court was asked to find the statute unconstitutionally vague.

Instead, however, the Court has decided to read the statute as if it had been written properly, instead of making Congress go back and do it right.

-=-=-=-=-

In Skilling v. U.S. (opinion here), the Court ruled that §1346 only covers bribery and kickbacks.  Since none of the defendants in Black, Weyrach and Skilling were charged with any bribery or kickbacks, these charges had to be dismissed.

But nowhere in the statute does it mention bribery or kickbacks.  And the feds have used it to prosecute any number of things that involved neither.  So clearly the feds, at least, understood it to mean more than just bribery and kickbacks.  And the Circuits that upheld such convictions understood it to mean more than that. 

Nevertheless, despite the fact that a lot of smart and reasonable people understood the statute to cover more than just bribery and kickbacks, the Court’s decision today says that everyone knows that’s what the statute meant.  Because everyone knows what Congress really meant to say, the statute’s not unconstitutionally vague.

Due process requires a penal statute to define the offense definitely enough so that ordinary people understand what’s prohibited, and so that it is not enforced arbitrarily.

The Court said ordinary people understand what’s prohibited — not in light of the way it’s actually enforced these days, which is unpredictable at best — but in light of the way the common-law doctrine had evolved prior to 1987. 

It’s obvious that Congress meant to embody that common-law doctrine, which dealt pretty much with bribery and extortion.  So if you interpret the statute to only encompass such acts, it’s not unconstitutionally vague.  Everyone knows you’re not supposed to do that stuff.

Seriously.  That’s the relevant portion of the opinion, in a nutshell.  “Yeah, it’s vague as written, but if it were written to say what Congress meant to say, then it’s not vague.  So we’ll interpret it as if it had been written properly.”

-=-=-=-=-

Justice Ginsburg wrote the opinion.  Part III is the section that deals with this issue (it begins on page 34 of the opinion).  As to Part III, she was joined by Roberts, Stevens, Breyer, Alito and Sotomayor.

Scalia, joined by Thomas and Kennedy, said the Court should not have rewritten the statute, but should have found it unconstitutionally vague.  “In transforming the prohibition of ‘honest-services fraud’ into a prohibition of ‘bribery and kickbacks,’ [the Court] is wielding a power we long ago abjured: the power to define new federal crimes.  See United States v. Hudson, 7 Cranch 32, 34 (1812).”  A vague statute cannot be saved “by judicial construction that writes in specific criteria that its text does not contain, see United States v. Reese, 92 U.S. 214, 219-221 (1876).”

Once again, we agree wholeheartedly with Scalia.  His opinion delightfully picks apart the errors of the majority’s statutory interpretation.  Our favorite passage is this one:

Arriving at that conclusion requires not interpretation but invention.  The Court replaces a vague criminal standard that Congress adopted with a more narrow one (included within the vague one) that can pass constitutional muster.  I know of no precedent for such “paring down,” and it seems to me clearly beyond judicial power.

-=-=-=-=-

Unfortunately, Scalia’s wrong.  There is precedent.  This Court is creating it as you’re reading this.  Last week’s Dolan decision was the start of a rule expressly permitting judicial invention as a method of statutory interpretation.  Today’s Skilling decision is a major adoption of that rule.

We wish it were otherwise, but it would be foolish to expect the Court to not apply that rule in future cases.

Still, it’s a good outcome.  Honest-services fraud is no longer a tool for lazy prosecution of cases that couldn’t otherwise be proven.  We just wish the Court had done it right, and thrown out the law entirely.

There are four Mondays left in June.  Four more days in which the Supreme Court is expected to announce its decisions in the 27 or so cases still out there this term.  That’s about one case per day from now till then.  We’re picturing the Justices pulling all-nighters, stacks of empty pizza boxes in the halls at 2 a.m. next to the burn bags (do they still use burn bags there?), and sleepy zombie-like clerks dropping in their tracks every now and then.

Some of those cases have to do with boring old civ pro or shipping or labor law.  But a whole bunch are about the cool stuff, criminal law.  Here are a few of the criminal cases we’re watching particularly closely:

Black v. United States
Weyrauch v. United States
Skilling v. United States

This trio of cases attack the “honest services” fraud law.  18 U.S.C. § 1346 was supposed to prevent political corruption, but Congress wrote it so sloppily that it’s become a catch-all crime for federal prosecutors.  Anyone can get charged with it, and nobody knows what it means.  The Court telegraphed its dislike of the statute during oral arguments of all three cases.  We’re going to be shocked and appalled if the statute survives the month.  (Read more of our commentary here.)  The feds also see this going the way of the dodo, as evidenced by their rush to add other charges to prominent cases after the first oral arguments in December.

Holder v. Humanitarian Law Project

This one also delves into the constitutionality of a law, this one intended to stop people from providing assistance to terrorists.  Like the honest services statute, however, 18 U.S.C. § 2339B(a)(1) is pretty darn vague.  It also seems to limit perfectly lawful speech, which would also be unconstitutional.  The feds (represented by nominee Elena Kagan) seem to want the law interpreted very broadly, to maximum effect, but during oral arguments the Supremes expressed deep problems with the statute.  It might get kicked back to the lower courts for more fine-tuning of the issues, though, rather than an outright invalidation of the law.

Dillon v. United States

There are a lot of federal inmates serving unfairly long sentences, due to the bizarre discrepancy in sentencing for crack vs. powder cocaine.  (See our latest piece on this here.)  In 2007, the Guidelines were amended a teeny bit, permitting a 2-level reduction for crack cases.  In 2008, that was made retroactive, so prisoners could get resentenced.  Dillon wanted to get resentenced.  But he wanted more than the 2-level reduction.  He wanted a departure from the Guidelines recommendation itself, as permitted by Booker.  But the feds say Booker only applies to full sentencing proceedings, not to resentencings like this — this is just an adjustment of the guideline range that should have been applied to a pre-Booker sentence.  As Scalia pointed out at oral argument, that would require the courts to essentially disregard Booker.  And given the universal loathing of the crack/powder disparity, we think a finding for Dillon would give the courts the ability to take the injustice into account and impose variance sentences more proportional to those for powder.

McDonald v. City of Chicago

A follow-up to the Heller case a couple of years ago, which said as a matter of federal law that the Second Amendment recognizes an individual right to own a gun, which predated the Constitution.  In McDonald, the issue is whether that applies equally to the states as well, or whether the states can limit or regulate the right to bear arms.  The Court seems likely to narrowly rule that the 2nd Amdt. is incorporated into the 14th, and that the right’s a fundamental one that all the states have to respect, but not get into whether this limitation or that regulation is constitutional.  Those details can be dealt with in the lower courts on remand.

Magwood v. Patterson
Holland v. Florida

Habeas cases that we admit not reading up on when they were argued.  In Magwood, the defendant already won a federal habeas petition, and got resentenced.  Now he’s got a second federal habeas, challenging the new sentence on constitutional grounds.  He could have challenged the original sentence on those same grounds.  So the issue is whether this new petition is a “second or successive” claim that has to be rejected under the AEDPA.  Just on a gut level, we don’t think the defendant’s got much of an argument here.

Holland deals with a defendant whose habeas petition was filed too late, due to the negligence of his attorney.  The defendant wants the limitations period tolled equitably, in the interests of justice.  Florida says equitable tolling should never be allowed.  Seems like the Court’s going to allow it, but clarify when it’s available.

-=-=-=-=-

Also, we’re still waiting on an important case out of New York’s Second Department, which might create a new emergency exception to the warrant requirement.  Fingers crossed.

Last night, we attended a domestic violence forum sponsored by the Children’s Aid Society here in Manhattan. We’ve been involved with the CAS for many years, and they do some pretty awesome things for kids in intense situations. And domestic violence is a deep and complex social issue we come across plenty. So we figured it might be worth checking out, and maybe come away with some new insights.

It was, and we did, but not in the way we’d expected. There was very little discussion of the causes of domestic violence, the various patterns of behavior of abusers and victims, what actions work to stop it and what doesn’t work, and challenges to be overcome in reducing the incidence of domestic violence. Those are sort of the kinds of topics we expected a domestic violence forum to get into, but unfortunately the talks were pretty much surface discussions of what the speakers do in their jobs, and the kinds of things they deal with.

That’s okay, we guess. The speakers were social workers, and most of the audience seemed to be social workers. So it’s probably nice that they got to hear what others in their field are seeing. But for anyone with a passing familiarity with domestic violence issues, there wasn’t much we’d consider enlightening.

Except for one thing.

-=-=-=-=-

Some in the audience expressed concern about getting ACS (our child-protective-services agency) involved, especially in cases of spousal abuse. They felt uncomfortable, even guilty, knowing that ACS — like pretty much every child-protection agency you’ve ever heard of — is more likely to do harm than good to the families it breaks up, by taking the children away. A mother who’s already being victimized by her husband or boyfriend now gets doubly victimized by losing her children, and the children are traumatized for life. “How can we justify getting ACS involved,” they wanted to know; “how can we live with ourselves afterwards.”

The unanimous response from the panelists was yeah, it feels bad, but you can’t blame yourself for making the call. It’s the abuser’s fault, not yours.

-=-=-=-=-

Where to begin with that attitude? It neatly summarizes everything that is wrong — not just broken, but wrong — with the way we handle domestic violence in this country.

Now believe us, we are fully aware of the horrific abuse that some spouses and children suffer. There are absolutely cases where the best thing to do is get the kids the fuck out of the house. But most cases aren’t like that. More often than not, kids are hauled into foster care or some other form of detention. They’re torn from their parents, suffering very real soul-raping trauma, something no child deserves. They’re taken away from the home “where the love is” (as one of the panelists put it), and forced to live in essentially state custody, in often non-nurturing environments where they get to lose something like one IQ point for each month they stay there. And the trauma is life-changing. Permanent. It cannot be undone.

Well, at least that doesn’t happen to kids unless there’s good reason for it, right?

Well, no. That’s not right at all.

You see, that social worker at the hospital is going to call in ACS if she merely suspects the kid might be in danger. Mere suspicion is enough. There need not be any actual proof. Panelists gave examples of what might justify their suspicion: a child is clinging a little to her mother, a child’s tone of voice, subtle body language. Seriously, that’s all it takes.

And what kind of danger are we talking about? Not necessarily the obvious stuff. Not a danger that the kid herself is being hit or anything. No, the kid’s in danger of (get this) witnessing her mother being abused.

And what kind of abuse are we talking about? Hitting, sure. But also name-calling, that counts too. Being mean, that’s psychological abuse. Restricting how much money the wife gets to spend, that’s abusive. Being bossy about how the wife dresses, that’s abuse too. Basically anything that can be interpreted as the man trying to have some kind of control over the woman counts as abuse.

So if the social worker gets a hint that the kid might be witnessing Daddy calling Mommy names, the social worker gets to call ACS. And the kid gets taken away. And that family is destroyed forever.

And get this, too: The social worker is perfectly justified in reporting Mommy for mistreating her kids. Mommy’s the one being abused, sure, but the kids saw it! She’s guilty of failing to protect them from witnessing her getting abused. Words from the panelists, I’m not making this shit up.

And the social workers get to sleep at night, because they can tell themselves it’s not their fault, it’s the abuser’s fault. At least, the fault of the guy they sorta kinda suspected might be an abuser.

You think that doesn’t happen? You bet your ass it happens.

-=-=-=-=-

Another staggering comment was about situations where a woman makes a false allegation of abuse. We all know it happens. When we were in the DA’s office, we got trained on dealing with this kind of situation, the false accusation, because we all know it happens. Happens in rape, too. There’s this certain subset of women who, for reasons of control or embarrassment or vindictiveness, will try to get the guy in trouble with the law. Maybe they want to get back at him for breaking up with her. Maybe they had sex they now regret. Maybe they want to show they guy who’s boss. Whatever the reason, they call the cops.

And now they’ve started a process they can’t stop. The system rolls in, and rolls over everything. The guy gets arrested. There’s an order of protection. He can’t come home now. He can’t help with the kids. He can’t talk to her. Maybe the kids get taken away, to get them out of the situation. Maybe the guy goes to jail, gets a record, maybe not. She can cry all she wants that she wants him home again, but it’s not her call any more. The machine cannot be turned off. And at the end of the day the family is destroyed over something that never happened in the first place.

This happens, sure, but how do you tell that situation apart from the equally common situation where a woman really is being abused, and she makes up stories to try to get back together with the abuser?

That’s a real problem. You’ll get a woman who needs that relationship, no matter how badly she gets hurt. You put her in a shelter, secret and safe where she and other victims like her are hidden from the men who would hurt them, and she’ll call her man to come get her, ruining the secret for all of them. Sometimes, that kind of relationship is just all they know, they grew up seeing that kind of relationship. More often, it’s a psychological addiction. The make-up periods after each incident are so good, she needs them. So she keeps going back. The abuse gets worse each time, but so do the make-ups. And if something isn’t done in time, she’ll wind up dead. That happens, too.

So how do you tell them apart? It requires some real judgment and probably some pretty specific training, so we were curious to find out how the experts try to spot the false accusations from the false retractions.

We asked one of the social workers, after the function. And we were told that this is a false premise: there is no such thing as a woman who alleges abuse where none occurred. If a woman says it’s happening, then it’s happening.

When pressed to at least consider the possibility of a false allegation, which we could attest to from cases we’ve actually handled, the social worker said it doesn’t matter. If someone’s making that kind of allegation, then something has to be happening at home that justifies state action.

Yes, something is happening. It’s a failure to even look for the possibility of innocence.

It’s bad enough when the police do it. But at least with the police there is some recourse through the criminal process. But in the bureaucracy of public social manipulation work, there’s nothing we can do but watch with dismay as injustice piles on injustice.

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These injustices are only a symptom, of course, of a broader illness.

It’s the result of putting too much power in the hands of people who can’t handle it. We know they can’t handle it, so we don’t give them a lot of leeway to exercise their judgment. We’re afraid that, if the people in these jobs were given discretion, they’d abuse it or misuse it. So to minimize injustices, we give them bright-line rules to follow, and take away their discretion.

But it is precisely that, the bright-line rule, which causes injustice. A person without discretion, who knows that a certain call is unnecessary or unjust, or who simply feels in their gut that it’s wrong, still has no choice. They must either do the wrong thing, or get in trouble. So they do the wrong thing.

This is, of course, an appealing situation for those of a nastily bureaucratic mindset. Little people who have their one bit of authority in this world, and who delight in using that power, because it’s all they have. When they’re just reviewing filings at a clerk’s office, or telling you you’re in the wrong line at the DMV, they’re merely an annoyance. But when they have the power to fuck up your life, they are dangerous.

It’s an appealing situation for that kind of person, so guess what kind of person is drawn to the job? We’re not saying all, or even most social workers in these roles are anything like that. It doesn’t matter. The point is that enough of them are. And plenty more simply lack the guts or judgment or experience to do the right thing.

We place far too much authority in the hands of people who can’t handle it. So it should be no surprise that injustice is routine.

With power must come the discretion to exercise it. And the greater the power to mess with people’s lives, the more discretion must be given. That’s why prosecutors are given so much discretion. Social workers need to be given that discretion as well.

And they need to be more carefully chosen. The people at the function last night were all very smart and capable. But let’s face it, this particular field doesn’t always get the best and brightest. That’s why we have these bright-line rules, again. Because we recognize they’re not the best or the brightest, so we can’t trust them to do the right thing, so we give them a command that requires no judgment, only mechanical reaction. Hiring people based on their ability to exercise good judgment would do much to make the problem go away.

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We’ve probably just offended a significant chunk of our readers. That’s okay, we’ll still sleep well tonight. It’s not our fault, it’s just this system and that lying son of a bitch, Johnson! We would never hurt you. You know that.

But please feel free to respond and let us know how you feel.