Althouse: Judge Kozinski to federal prosecutors: "This is not the way criminal law is supposed to work."

December 14, 2010

Judge Kozinski to federal prosecutors: "This is not the way criminal law is supposed to work."

"Civil law often covers conduct that falls in a gray area of arguable legality. But criminal law should clearly separate conduct that is criminal from conduct that is legal. This is not only because of the dire consequences of a conviction—including disenfranchisement, incarceration and even deportation—but also because criminal law represents the community’s sense of the type of behavior that merits the moral condemnation of society.... When prosecutors have to stretch the law or the evidence to secure a conviction, as they did here, it can hardly be said that such moral judgment is warranted."

29 comments:

chickelit said...: Preponderance of evidence is easier to pile up than beyond a reasonable doubt is to leap over.

Life's burden.; 12/14/10, 8:19 AM
traditionalguy said...: Conrad Black concurs. The awesome PR behind a US District Attorney nand the Media lets them arrest and ruin...well anybody anytime. There are hundreds of business competitors that win big time if they can get a competitor charged with a form of criminal violation. That IS fascism. Defense attorneys applaud Kozinski for explaining this scam in public.; 12/14/10, 8:30 AM
Saint Croix said...: Why isn't this guy on the Supreme Court?; 12/14/10, 8:55 AM
virgil xenophon said...: Bingo! St. Croix. The Pole is one of the finer legal minds in the nation and would probably be my 1st pick for The SCOTUS were I by some unfathomable reach ever elected Maximum Leader--Ninth Circuit pedigree notwithstanding..; 12/14/10, 11:47 AM
former law student said...: The Pole

Judge Kozinski grew up in Hungary.; 12/14/10, 12:35 PM
Eric said...: That IS fascism. Defense attorneys applaud Kozinski for explaining this scam in public.

And yet it won't stop happening until judges are willing to impose sanctions on the people who are abusing the system, something they seem incapable of doing.; 12/14/10, 12:38 PM
former law student said...: Ooops! Romania, not Hungary.; 12/14/10, 12:42 PM
Freeman Hunt said...: I liked this quote better:

"criminal law represents the community’s sense of the type of behavior that merits the moral condemnation of society. See United States v. Bass, 404 U.S. 336, 348 (1971) (“[C]riminal punishment usually represents the moral condemnation of the community . . . .”); see also Wade v. United States, 426 F.2d 64, 69 (9th Cir. 1970) (“[T]he declaration that a person is criminally responsible for his actions is a moral judgment of the community . . . .”)."

Kind of like, say, laws against fathers sleeping with their daughters.; 12/14/10, 1:10 PM
Revenant said...: Freeman, it is one thing to say "nothing should be illegal unless it is also immoral". It is quite another to say "if it is immoral we must make it illegal too".; 12/14/10, 3:02 PM
MDIJim said...: Revenant, as much as I dislike lawyers, what you said is a gem of legal reasoning and a wonderful illustration of why society needs lawyers and judges. Thank you.; 12/14/10, 3:15 PM
Saint Croix said...: Freeman, it is one thing to say "nothing should be illegal unless it is also immoral". It is quite another to say "if it is immoral we must make it illegal too".

Since neither Kozinski nor Freeman are arguing that all bad things must be outlawed, I'm not sure I see your point. Kozinski and Freeman are simply making the point that immorality is sufficient legal justification for the outlawing of an act. And that would be immorality as defined by a community, not by elites who deem themselves superior to it.

It's important to realize that libertarian philosophy is itself a moral proposition, a moral belief system with its own sense of right and wrong. Libertarians think it's immoral for people to go to jail, or get arrested, for prostitution or snorting cocaine (or whatever). But this is a type of morality and if you were to vote your beliefs into law you would be legislating your morality.; 12/14/10, 4:50 PM
Revenant said...: Kozinski and Freeman are simply making the point that immorality is sufficient legal justification for the outlawing of an act.

Er, no, that's not the argument Kozinski is making. You're making the same mistake Freeman did. Kozinski is making the case that criminal law should be reserved for situations that society firmly agrees are immoral. That is, like I said, NOT the same thing as saying "immorality is sufficient grounds for illegality". Lying to your parents is immoral, but I'm guessing even you and Freeman would object if we started prosecuting children for it.

It's important to realize that libertarian philosophy is itself a moral proposition

That's incorrect. Libertarianism is a political philosophy that people adhere to for a variety of reasons, ranging from moral conviction to pragmatism to pure selfishness. It is not a moral proposition, unless you assume that all decisions about how people should act are "moral propositions".

There are libertarians who are Christian fundamentalists, for example, and favor libertarianism even on social issues not because they think restricting vice is immoral, because they know mixing secular government with sectarian religion corrupts both. Similarly there are people like myself, who recognize that the laws against drugs and prostitution do nothing to prevent or limit either, cost a huge sum of money, make worse the effects they are supposed to lessen, and empower violent criminals -- and thus, are a remarkably stupid idea on common-sensical grounds. Mind you, I think the laws are immoral as well, but I'd be against them even if I didn't.; 12/14/10, 8:09 PM
former law student said...: The Rev is correct about Kozinski's position. To be convicted of a crime carries a stigma that must be justifiable -- not every rule violation merits the criminal stigma.

Imagine if offsides were punishable with jail time.; 12/14/10, 10:25 PM
Saint Croix said...: Kozinski is making the case that criminal law should be reserved for situations that society firmly agrees are immoral.

You are not reading that passage at all. "The criminal law should clearly separate conduct that is criminal from conduct that is legal."

He's making an argument for a harsh, absolute, black and white definition of what is a crime. Because the punishment for being a criminal is so dire, to be fair to the citizenry we have to know what is illegal.

That's not some damn libertarian message board argument that every crime has to be super-bad, bad bad, or so bad that Kozinski agrees that it's bad.

No, what he's begging for is clarity in the law.

The only time he speaks of morality in the passage Althouse cites is in this statement: "Criminal law represents the community's sense of the type of behavior that merits the moral condemnation of society." Which is exactly what Freeman is saying and what I am saying.

Are you arguing that Kozinski would find an unenumerated right to adult incest? It's idiotic. Kozinski is in the Hugo Black, Antonin Scalia, Akhil Amar, and dare I say it, James Madison and Thomas Jefferson mold. He does not think that the unelected judiciary should dictate libertarian philosoophy to the American people. To do would not be "libertarian" at all.; 12/15/10, 7:43 AM
Saint Croix said...: Libertarianism is not a moral proposition, unless you assume that all decisions about how people should act are "moral propositions".

I think all political philosophies are moral propositions. There's morality behind it, under it, beneath it, all around it. It could be a wrong morality. I'm not speaking to the rightness of the morality, just that people who come up with political philosophies are grappling with what is right and what is wrong.

I can't tell you how fucking annoying it is when somebody says "freedom!" and pretends that it's not a moral proposition. For instance, striking down the abortion laws in all 50 states and pretending that you are not dictating your sense of right-and-wrong to the American people.

There are libertarians who are Christian fundamentalists, for example, and favor libertarianism even on social issues not because they think restricting vice is immoral, because they know mixing secular government with sectarian religion corrupts both.

Yeah, so we ought to just leave slavery alone. Wouldn't want to corrupt the Baptist church.

And I don't know any Christians who think that Christians in the government would corrupt the government.

It's bizarre how people flip the Constitution on its head and say that it's important to protect government from religion. The Constitution doesn't protect government at all! And it certainly doesn't regulate the Church. "The Church shall not interfere in matters of the government." That's what it would say, if the Constitution says what liberals keep insisting it says. Where is that in the Constitution? The Constitution keeps mentioning this "Congress" thing, worrying about this damn "Congress". And yet liberals manage to flip this around and say that the Constitution regulates the church and protects the government. Horseshit on sticks.; 12/15/10, 8:08 AM
Saint Croix said...: One thing you non-historians need to understand is that the states had established churches in 1789. So "Congress shall make no law respecting an establishment of religion" has a very strong federalism component. "We have state churches. Do not pass any laws in regard to our state churches." Imagine 13 Israels in 1789. It's hardly the secular utopia that the libs have in mind for us today.

And of course our 14th Amendment changed our system of government fundamentally. A state establishment of religion would probably be unconstitutional today. I say "probably" because the 14th only incorporates individual rights. And you have to go through a thought process and figure out how an establishment of religion offends an individual right. What people usually come up with are thought crimes, speech wounds, my feelings are hurt. And since this clearly conflicts with free speech and free exercise, the establishment clause is a muck of jurisprudence. We don't know how to resolve it.

I have completely gone off topic now. My bad.; 12/15/10, 8:28 AM
Saint Croix said...: I overstate when I say "13 Israels" in 1789. Not sure of the exact number, but it's less than 13.

Right-wingers often accuse anti-Israel libs of being anti-Semites. But what really burns the liberal bacon is an establishment of religion. I think that's why so many libs hate Israel.

I'm playing seven degrees of Alex Kozinski. Now I'm in Israel.; 12/15/10, 8:51 AM
Saint Croix said...: It's six degrees, not seven degrees. Now I'm on Kevin Bacon.; 12/15/10, 9:13 AM
Saint Croix said...: Of course I'm not actually on Kevin Bacon.

That would be gay. And possibly immoral. It's up to our community to decide. Or it's up to our community to decide that it's up to the individual to decide. But I'm pretty sure Alex Kozinski is not going to be dictating his own policy to our people.

Whew. Back on topic.; 12/15/10, 9:18 AM
Revenant said...: He's making an argument for a harsh, absolute, black and white definition of what is a crime.

Yes, he's making that point as well, but we were discussing the comments related to morality.

That's not some damn libertarian message board argument that every crime has to be super-bad, bad bad, or so bad that Kozinski agrees that it's bad.

Nobody said that it was.

Are you arguing that Kozinski would find an unenumerated right to adult incest?

Nothing I've said could be construed as meaning that, so no.

What you and Freeman are saying is "immorality is sufficient legal justification for the outlawing of an act". What Kozinski is saying is that immorality is a necessary justification for the outlawing of an act; this in no way implies that it is sufficient justification for outlawing the act. According to the dumbed-down reading you're advocating, the only question you would need to ask when deciding if something should be illegal is "is it immoral?"; 12/15/10, 1:48 PM
Revenant said...: people who come up with political philosophies are grappling with what is right and what is wrong.

Some of them are. Others are grappling with what works and what doesn't, which is the point I was making. E.g., you can be pro-democracy because you believe all people are entitled to a voice in government or just because it is the least-bad form of government yet invented.

I can't tell you how fucking annoying it is when somebody says "freedom!" and pretends that it's not a moral proposition.

Just because it is often a moral proposition doesn't mean it always is. Keep in mind that many of the things we think of as "moral" have practical value as well. Do YOU like living your life according to the whims and dictates of government bureaucrats? No? Well, then -- there's a good, practical, amoral reason to be pro-freedom.

Yeah, so we ought to just leave slavery alone. Wouldn't want to corrupt the Baptist church.

Funny example, because it did. The Baptists split over slavery, with the Southern Baptists supporting it and the rest opposing. It is hard to claim that religion had a net effect on slavery one way or the other -- in areas where slavery was accepted, churches supported it, and in areas where it wasn't, they didn't.

And I don't know any Christians who think that Christians in the government would corrupt the government.

Argumentum ad ignorantiam. Two things to keep in mind:

(1): Jesus did not add a "... and get Caesar to have the government help spread the word" to his "render unto" remarks. Theologically speaking, the government is supposed to administer to secular needs, not spiritual ones.

(2): Many fundamentalists feel outnumbered, and they're right. The more religion bleeds into government, the more fundamentalists are governed according to -- from their perspective -- NON-Christian religious law. A Catholic government is worse than a secular one, because at least the secular one isn't spreading "false" teachings about Christ.

It's bizarre how people flip the Constitution on its head and say that it's important to protect government from religion.

Some people realize that (a) there is more than one religion and (b) the government has a lot of power, and that you therefore can't protect religion from government without keeping religion OUT of government. What's your guarantee that your religion will be the one that wins the election? It almost certainly won't be.; 12/15/10, 2:44 PM
Revenant said...: This comment has been removed by the author.; 12/15/10, 2:45 PM
Saint Croix said...: It is hard to claim that religion had a net effect on slavery one way or the other

Yeah, they just freed the slaves, that's all. No biggie.

If you think the abolitionist movement was not religious-based, you're badly mistaken.; 12/15/10, 5:01 PM
Saint Croix said...: Some people realize that (a) there is more than one religion

You're going to make me snort milk out of my nose.

the government has a lot of power

2 for 2

and that you therefore can't protect religion from government without keeping religion OUT of government.

Quick, can Rev. Jesse Jackson run for the White House? If he's elected, can he say a prayer? Can he read the Bible?

Maybe his aides could carry a wall around with them and he could hide behind it when he gets a religious urge.; 12/15/10, 5:23 PM
former law student said...: Yeah, they just freed the slaves, that's all. No biggie.

If you think the abolitionist movement was not religious-based, you're badly mistaken.

Abolitionists didn't free the slaves, any more than peaceniks ended the Vietnam War. And the Rev is quite right that Southern Baptists found Divine authorization for the keeping of slaves in the Bible. The net effect of Christianity vis a vis slavery was zero.; 12/15/10, 5:44 PM
Saint Croix said...: Abolitionists didn't free the slaves

How do you think they were freed? Accidental side effect of some war that was fought for no reason? Why do you think the South flipped out when Lincoln was elected?

Do you think Lincoln was influenced by the abolitionists? Or did Lincoln not free the slaves, either?

And the Rev is quite right that Southern Baptists found Divine authorization for the keeping of slaves in the Bible.

Yeah, so what?

Is it your position that all the religious people in the Civil War cancel each other out, and the slaves were freed by Yankee atheists?

Oh if only we could put those damn irrelevant religious people behind a wall or something.; 12/15/10, 6:11 PM
Revenant said...: Yeah, they just freed the slaves, that's all. No biggie.

The anti-slavery Christians beat the pro-slavery Christians, ergo the slaves were freed by religion? Hm.

If you think the abolitionist movement was not religious-based, you're badly mistaken.

You've adroitly missed the point as usual. Both slavers and abolitionists were supported by their churches.

You can try to claim religious credit for "freeing the slaves", although the large army of the (secular) Union might have had something to do with that as well. But it is intellectually dishonest to overlook the fact that Confederates were taught by *their* religious leaders that slavery was ordained by God and abolitionists were tools of Satan.

You can ask "without Christianity, would American slavery have ended?". It is equally valid to ask "without Christianity, would it have lasted as long as it did?".; 12/15/10, 9:06 PM
Revenant said...: You're going to make me snort milk out of my nose.

I direct you to Althouse's recent posts about people substituting laughter for legitimate rebuttal.

Maybe his aides could carry a wall around with them and he could hide behind it when he gets a religious urge.

My, you certainly do know how to flog a straw man.

I'm sorry that the beliefs of some Christian fundamentalists seem idiotic and laughable to you. That is not, however, my fault. They aren't my beliefs, and I'm not responsible for them. You're welcome to believe that no such people exist if it makes you feel more secure in your passionately held beliefs.; 12/15/10, 9:16 PM
Saint Croix said...: The anti-slavery Christians beat the pro-slavery Christians

Yeah, pretty much. There were some Jews, some atheists. Our country was overwhelmingly Christian at the time. This is a surprise to you?

ergo the slaves were freed by religion?

The abolitionist movement was religious-based, like the pro-life movement today. Read up on Nat Turner. Or John Brown.

Our society is far more secular today. And yet we still have lots of religious people. The pro-life movement is, for the most part, a bunch of unhappy Christians. And of course there are Christians on the other side. Religious people often disagree. Harry Blackmun self-identified as a Christian. I’m sure Harry was very unhappy when his preacher criticized him for infanticide.

Read up on Rev. Martin Luther King Jr. That’s another movement that was started in churches. He was inspired by scripture. Irrelevant? Unconstitutional? Come on.; 12/16/10, 1:58 PM