Stupid judges strike again

JHS
Fri, 14 Mar 2008 08:44:11 +0000

RICO was very broadly drafted, and one of the key Congressional staff people who drafted it, who later became a (conservative) law professor at Notre Dame, was a constant proponent of its broad application. And, even then, the breadth of RICO’s application remains highly controversial – without doubt the most contentious issue in straight criminal law over the past 30 years. It’s not a great model for anything.

(One of the controversial aspects of RICO, too, is its mixed criminal-civil approach, where the civil aspects – which have been very broadly interpreted – are often much more punitive than the criminal sanctions.)

Thinking about this last night, I was reminded of my criminal law professor. He was politically conservative, and generally a nasty person – the absolute opposite of a fuzzy liberal. He was something of an expert on drug laws, and had been appointed by Governer Reagan to head a commission to re-write California’s drug laws. At one point, he was approached by a criminal defense attorney who wanted him to represent the guy’s client on appeal. The client had been caught with twenty pounds or so of marijuana he had grown, and had been convicted of being a drug dealer. But the then-current California statute only applied to cannibis sativa, and the guy had biological proof that what he had grown was a different species of cannibis. (Not that it contained less THC or anything, just that it was a different, more obscure species.) Anyway, my professor had represented the defendant on appeal and got the conviction thrown out – maybe the only time in his career that he worked for a defendant. He said that for him it wasn’t a tough decision at all – the only moral choice was to uphold the law as written, and then make certain it got re-written the right way.

Lots of attention gets devoted to ideological splits in the courts, but that tends to disguise the fairly narrow range of issues which are subject to good-faith disagreement on the basis of ideology within our legal system. Look, the U.S. Supreme Court has be sharply divided ideologically for 35 years, and the way its jurisdiction works ensures that only the most controversial cases get heard by it. Yet, year in and year out, more than half of its cases are decided unanimously or with only one or two dissents. For lower appellate courts, the percentage of unanimous decisions is much, much higher. Mainstream legal culture makes it easy for people to agree on a wide range of legal issues. And the one in this case is one of those.