Critical Judicial

posted 1/27/10
Critical of Criticism

I had a conversation the other day with a respected colleague who happens to be an attorney. She finds the Prospect’s characterization of attorneys to be stereotypic and insulting. In her view, those in the legal system observe decorum in the courtroom out of respect for the law, and the rights of the accused or litigants.

She views the deconstruction of the mythology around the judge to be counterproductive. She feels that the judge dons the robes less to impress the accused than to remind herself that she no longer represents her own opinion. The black robes are to remind her that she is blind to the person and attends only guilt or innocence, or other judgement appropriate to the type of case.

The legal profession, and its decision making body, the court, provide a vital service to society there is no way to avoid.

She stated that, if anything, there is too little respect for the court. Many defendants ignore bench warrants and defy the judge’s attempts to help them. Clients come to court dressed in disgraceful ways. She pointed out that it’s against the law to disrespect the judge; it’s called "contempt of court".

She argued her case well, noting that proper courtroom dress benefits the accused. There is no question about that: the better dressed you are, the more it seems like you have ties to the community (family, church, job, volunteer work), the more the judge is likely to view you as socially responsible. There is also no question the many judges attempt to steer people away from prison. She argued convincingly that the majority of judges are honorable, well intentioned people who often have to make very difficult decisions based on an odd assortment of evidence.

On the one hand, she was very compelling, presenting her profession as much maligned and essential to the smooth running of a complex society.

On the other, she was demonstrating the observations of the sociologist. Disregarding for just a moment the value of her statements, her statements themselves are typical of the members of a profession, guild, or priesthood. As brilliantly argued as her perspective was, she reflected the beliefs, mythologies and explanatory and justifying narrative of the profession about itself.

The Gavel. This one is from Massachusetts.

Likewise, she had a practiced understanding of the robe and the gavel, two of the most recognizable symbols of law, what their symbolic and ritual use are. Just as a shaman 40,000 years ago might have used bird feathers to escape his personality in this world to commune with the gods, the judge uses the black robes to estrange herself from her personality to commune with the wisdom gods of law. Our judges are able to do it without white wigs; in many nations the wisdom gods can only be reached with a white wig as well as grand flowing robes and a little wooden hammer.

Do you believe? Sitka Shaman

Ritual Vestments

But, vestments, ritual clothing which changes a person from a normal person to a specialized being within the community, are very common among humans and have been for thousands of years, perhaps as many as 70,000 years. In the old days of human kind, you knew a cobbler because he carried leather and half finished shoes. But, a priest can’t carry bits of the spirit world, so he wears feathers or other bits of ritual paraphernalia. Suddenly, vestment became symbolic.

How powerful are these symbolic vestments? Ask a cop, who wears all kinds of symbolic and not-quite-so symbolic clothing, which might include a radio, handcuffs, flashlight, firearm, taser, and bat-a-rang. Wait, don’t they use all those things? Surely they’re nice to have when you need them, but what they do most of the time is make the cop seem larger. Military uniforms, doctor’s scrubs, these are uniforms which have become almost ubiquitous, so that you know what a cop looks like in Hong Kong or Mumbai.

Courtroom layout in Massachusetts, and most places.

If we look at the ritual area, we see the judge seated highest of all; this is typical of courtrooms everywhere. Next, the witness box is not as high as the judge’s bench, but the witness is clearly on display. While the judge often has a large bench, the witness is often unprotected, sitting, as it were, on a perch. The jury is most often fenced from the action, and, oddly, off to the side.

Modern courtrooms tend to be more spare, but really big deal courtrooms rely on regal appointments.

Modoc Court, old style

Modoc Court, new style

Is all the vestment, ritual and judicial mysticism necessary, as my colleague insists? It might well be. Dramaturgy is the paradigm of sociology which most graphically describes the courtroom and the action within it. It finds many of the same "structures" in the criminal justice system as it does in gangs or most other forms of social organization from Confucianism to the New York Mets.

According to dramaturgy, people need "scripts" or rituals to give life meaning. A dramaturgist would point out that people join all kinds of clubs and organizations mostly just to hang out with other people and have roles to play. It really is, as my colleague said, how we can make sense of criminal justice.

The Courtroom of The Supremes. Not pretentious much.

But, what about those who don’t believe?

My colleague mentioned problematic defendants. They are actually the bulk of the criminal justice the court sees. Crime, like stock ownership, follows "Parato’s principle of the vital few" meaning that 20% of the population commits 80% of the crime.

If you take a middle class woman who belongs to the church and has a job to court, it works like magic. She is invested in the system, she has things to lose. She’s part of the 80% that only create 20% of the crime, and she’s not likely to re-offend.

Once a person actually goes to jail, though, much of the magic wears off. If you are one of the 20% that commits 80% of crime, things are different. You aren’t invested in the system anymore. It won’t work to kill the 20% of people who commit 80% of the crime. A new 20% would emerge from the 80% who remained. This is a "systemic variable" meaning it emerges from social structures and is measured in the lives of humans. This is the "elephant in the room" that nobody talks about, but nobody can avoid.

One unintended consequence is that those who fall into that 20% are often aware that the system is working differently for them, and they become dis-invested. Once a person has been to jail, it is still undesirable, but less scary. Further, each time you go to jail you have less to lose. There are fewer slots than people in our society; the less necessary you are to society the more likely you are to go to jail. The more you go to jail, the more likely you are to go to jail, even if you aren’t addicted to meth or alcohol. The criminal justice system is like a pitcher plant, which catches insects through the clever use of downward pointing hairs. The farther you go, the farther you’ll go.

After a certain point, cops and judges are just an everyday misfortune, like a toothache or AIDS. Smart people do indeed go to prison, but there isn’t a preponderance of them. If prison is your career, it helps if you aren’t the brightest bulb in the lamp.

All of these things place you before the judge often, and make it difficult or unlikely to escape the system, at least until you "age out."

These social realities are not the judge’s fault, but she or he has much more power in the system than the defendant does. Still, the judge will find it more difficult to deal with people for whom the drama won’t work out well.

Big Judgement: the Inquisition in Rome

How does the judge use her or his power? We don’t have to wonder: trained in the dark arts of the law, and with career and retirement on the line, we know that the judge will act judgely; that is, in reference to the law, and like religious leaders everywhere refer to their prophets, judges will refer to the judges who came before.

But does that mean all judges would judge the same in the same instance? Not at all, anymore than all shamans would treat a demon infestation the same way or every doctor would diagnose and treat an illness the same way. Not only that, but the same person might well make a different judgement at another point in life.

What this means is the ritual and vestments do help organize our county, and they probably do help a sincere and experience judge focus on the task, just as the shaman’s rituals and vestments help her or him. But, in the real world, the drama can become quite bizarre.

In the article on Truth we quoted Jack Balkin, who is an amazing legal and philosophical mind. (As an aside, he would generally agree with my colleague about the necessity of ritual for order in law. More on Balkin Wiki, and a great article on the Constitution here). Here is what he said:

In fact, one of the most interesting features of law as a system of social conventions is its ability to make things true or, to put it another way, to create legal categories that permit characterizations of situations and practices that are true or false. My point, however, is not simply that propositions of law are true in virtue of legal conventions. It is rather that law creates truth-- it makes things true as a matter of law. It makes things true in the eyes of the law. And when law makes things true in its own eyes, this has important consequences in the world.

We see that ritualizing the court process has a cost: it becomes so reflexive and self-referential that it begins to make a truth that makes sense only to itself, and yet the consequences are felt by real people.

Yes, we probably do have to accept the rituals and vestments of court, they organize the legal world. But, we do so knowing we are entrusting our lives to a priesthood whose occult knowledge is intended to screen non-initiates out and increase its own mystique. We further understand that there are systemic features of our society beyond the judge and beyond the choices of ordinary people. Finally, we understand that, given the unique ability of the court to "create" social truth, it really does matter who the judge is; the robes are magic, but not that magic.

My colleague impressed me sufficiently that I feel compelled to say again that the judicial candidates want to be heard, and people have to be open to hear them. What kind of truth will each person create in the courtroom? How will the robe and gavel help them be wiser than they are, less biased?

Originally I had lobbied for a discontinuation of the "dress code". I now realize that no one would benefit from that change. Still, we recall that Donald Black has related class to the outcome of trials, and the tailored suit is the vestment of the wealthy. Our poor cousins can put on their Sunday best, and it will probably help some, but it’s a game we can’t win.

Perhaps the change we should request is that all our clothes be black robes. Orange jumpsuits don’t seem to meet the dress code. Maybe the robes will cause the guilty to transcend their guilt and tell the truth.

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