Friday, February 21, 2014
Cecelia's post on prosecutors as ministers of justice reminded me of Robert Jackson's 1940 speech, "The Federal Prosecutor." Her focus on the humility that a prosecutor must possess in order to recognize he or she has prosecuted the wrong person echoes Jackson's identification of the need for everyday prosecutorial humility at the very end of his talk:
The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen's safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.
As this excerpt reveals, humility is but one of the character traits that a prosecutor must possess. And more generally, it is impossible to read Jackson's speech or to think about the problems examined in Cecelia's post without coming away with the sense that, to paraphrase The American President, "Being [a prosecutor in] this country is entirely about character."
Rusty Reno has a thoughtful, and bracing, piece up at America, called "Our Secular Future." Check it out. A taste:
Americans are rightly proud of our tradition of religious liberty. The founders recognized that religious convictions cut very deeply into the soul, making people capable of great sacrifices—and often stimulating bitter conflicts and terrible persecutions. Thus we have the First Amendment and its definition of the first freedom: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
We need to recognize, however, that our approach to religious freedom has in fact changed a great deal in the more than 200 years of national history. These changes reflect shifts in the overarching religious consensus in the United States. By my reading of the signs of the times, this consensus is changing yet again. The shift foretells a renegotiation and redefinition of the nature and scope of religious liberty—one that I fear will not favor religious believers . . .
Caitlin Flannagan's article at The Atlantic, "The Dark Power of Fraternities," is necessary reading for anyone connected with higher education--whether as a parent, a student, a teacher, an administrator, an alumnus, or any combination of these or other connections. The article should be of interest to MOJ readers for many reasons, including its discussion of the morally ambiguous roles of lawyers. It is not a "hit piece," but it does hit fraternities and universities hard, even while acknowledging that fraternities serve many good purposes.
Mary Jo Anderson has written a wonderful essay on Belgium's recent approval of a law permitting children to "choose" euthanasia, on the Crisis Magazine website, Mocking Compassion: Euthanasia Beyond Belgium. She points out something that should make it simple for Christians to cut through all the tortured reasoning about 'compassion' and 'choice' and 'suffering' that swirls around in euthanasia debates. She writes:
Christians can take their cue on the question from Malcolm Muggeridge: “Jesus healed the sick, raised Lazarus from the dead, gave back sanity to the deranged, but never did He practice, or include, killing as part of the mercy that occupied His heart. His true followers cannot but adopt the same attitude.”
Thursday, February 20, 2014
On the Religion Law list of legal scholars, as you might imagine, considerable attention has been given in recent days to the contraception mandate cases pending before various courts. During those discussions, I posted a message designed to challenge that largely skeptical audience to entertain the possibility that women and men of intelligence and good faith could reasonably depart from the conventional wisdom in academia that artificial contraception is essential to human progress and gender equality. With that in mind, I suggested that a counter-cultural community grounded in such values should be, not just grudgingly tolerated, but liberally allowed the breathing room to thrive in a diverse and free society.
Because I received so many encouraging private messages, from across the political spectrum and from those on both sides of the contraception debate, I am setting out that message below:
Following up on yesterday’s conversation, let me approach the question of Catholic resistance to the contraception mandate as a plea for something more than grudging tolerance of different opinion but rather a request for a more “liberal” acceptance of a community with an alternative view of the good life. At the outset, I emphasize that my primary purpose here is not to persuade you that this alternative view is better. I am not even arguing today that those who advocate for ready and cost-free access to artificial contraception should refrain from advancing that policy preference through political means. My aim of the moment is much more modest, which is to contend that in a free and diverse society, public policy should leave ample breathing room for a community with a counter-cultural understanding on these important questions.
I appreciate that contraception is widely viewed throughout the academy as an unalloyed positive social good, even a “revolutionary” and necessary step for women’s equality. Indeed, it would not be an exaggeration to describe the pro-contraception position as the privileged narrative in the academy. The contrary view is seldom heard in the halls of the typical law school and not much respected on the irregular occasion that it is voiced. Those who resist the use of artificial contraception are regarded at best as being quaint or in need of consciousness-raising and are seen at worst as retrograde believers in a subservient role for women as incessant baby-makers. Through this post, I want to challenge this group of open-minded scholars to entertain the possibility that women and men of sound mind and good heart, many of “feminist” inclinations, can reasonably and even joyfully embrace an alternative worldview that embraces sexuality as a gift but excludes artificial contraception.
The perspective that I sketch here, inartfully, is that shared with me by many friends, colleagues, and former students—Catholic women who accept the Church’s teaching on sexuality and contraception, not as a rigid doctrinal imposition, but as a gift. And these are successful professional women, who have satisfying careers as lawyers or law professors, which they have integrated with fulfilling personal and family lives. For on-line examples of these voices, although I do not know these women personally, I suggest these links: http://catholicmoraltheology.com/catholics-contraception-and-feminisms/ and http://www.integratedcatholiclife.org/2012/07/lorraine-murray-catholic-womans-journey-with-contraception
For the orthodox Catholic women that I have known in professional settings, they have not experienced the ready availability of artificial contraception as liberating. Rather, they have seen the assumption that all women use (or should use) artificial contraception as serving to fuel the hyper-sexualized environment on college campuses, leading to the familiar “hook-up” culture and its devaluation of human sexuality and degradation of women. Rather than seeing contraception as enhancing equality, these women have seen the presumption of contraceptive use as encouraging men to behave irresponsibly and to treat women as sexual conquests. In sum, by resisting the contraception narrative, these women have set a different path for romantic relationships. They believe they have achieved healthier relationships with men.
When these professional women marry, they engage in discourse and planning with their husbands about children, a dialogue that cannot be avoided because contraception is not used to make it possible to avoid the question. Contrary to the absurd suggestion that women who do not use artificial contraception typically have ten to twenty children, these women know that family planning and artificial contraception are not synonymous, and they insist that modern women have not lost all capacity for self-control. While they may choose to have larger families than the norm in some circles, the professional Catholic women that I know who joyfully follow Church teaching have families with children ranging in number from a single child to about half a dozen, with most in the two or three range.
Now let us suppose that a particular Catholic community—a Catholic university, let us say—wishes to build an oasis in which young men and women have an alternative to the contraception culture that dominates most of society. This university builds single-sex dormitories and adopts what we’ll label “parietals” that call for person of the opposite sex to leave a student’s dorm room after a certain time each night. Every student admitted to the university (and every faculty or staff member employed by the university) is well aware of the Church’s teaching and of the university’s considered policies in accordance with that teaching.
Knowing that their students are real people and not angels, the Catholic university leadership understands that not all young men and women on campus will succeed in living what they believe is a healthier and more satisfying lifestyle. But a critical mass of students (and faculty and staff) will so succeed within a supportive environment, quite different from that which prevails at most universities. And not wanting to be oppressive, university leaders certainly will not invade the privacy of students (which itself would be a violation of human dignity) by searching their rooms to ensure that no one brings artificial contraception on campus. But the university will in no wise facilitate or encourage artificial contraception.
For these reasons, as a faithful witness to the community and as an encouragement to students to live faithfully, this Catholic university will not permit artificial contraception to be dispensed on campus and will not associate itself in any way with those who market or distribute such artificial contraception. Not wanting to give any scandal or tarnish in any way the Church’s message about the sacred beauty of human sexuality, the university refuses to cooperate or be complicit with distribution of artificial contraception.
Now shouldn’t a genuinely “liberal” and free society not merely tolerate but leave ample breathing room for a community that adopts an alternative view of what it means to thrive as human beings? Shouldn’t we strive for a public policy respectful of diversity that does not suffocate these countercultural views by all-embracing mandates? Shouldn’t we be alarmed by a governmental orthodoxy that cannot allow this community to march to a different drummer?
I am delighted to annlounce that Volume 29, Issue 1, of the Journal of Law and Religion is now available. All of the articles are available online through the JLR's Cambridge Journals Online website, here. All articles will be accessible without charge for the first two months. Print copies should ship to subscribers in the coming week.
Wednesday, February 19, 2014
And, here is *another* great-looking event, courtesy of the folks at the Lumen Christi Institute.
Jewish and Catholic Approaches to Property & Social Justice
Hosted by Jenner & Block
Cosponsored by The Advocates Society, The Catholic Lawyers Guild, The Decalogue Society of Lawyers, The Jewish Judges Association of Illinois, and the National Center for the Laity
Free and open to the public. CLE Ethics Credit Pending.
Both Jewish and Catholic traditions teach that each human being is obliged to attend to the needs of the vulnerable and use property for the common good. The obligation to the vulnerable attaches to each person; it even is imposed on the poor oddly enough who are obligated to give something to others (even if what they do is exchange with each other) because the experience of giving to help others is part of what is crucial to human life and something the poor should not be deprived of. The traditional language also understands this to be a commandment from God, which really means part of the structure of the world.
Additionally, both rights and obligations flow from possessing property according to both Catholic and Jewish social justice teaching. The obligation to provide for the poor also forms a core social obligation attaching to the possession of property. From this obligation may arise certain entitlements–these entitlements are a subject of much controversy in our country today. However, there can be no dispute that both religious traditions espouse the subordination of private property to the common good. This discussion will examine the legal, religious, and philosophical grounding for this common belief and consider the legal and political implications that follow.
I have a short essay, in the current issue of the Irish Rover (an alternative student-run paper at the University of Notre Dame) called "What is the Mission of the Catholic Law School?" Here's a bit:
. . . As we see it, a Catholic law school—like Notre Dame—is able to be a better law school, and to better form conscientious professionals and leaders, precisely because it is Catholic. It is well known that law and lawyering receive a good deal of criticism these days, and much of it is well deserved. Too often, law is seen as a “bag of tricks” to be manipulated by the powerful for their own ends; too often, lawyers are content to regard themselves as “hired guns” or as mere technicians; too often, the formulation of legal rules and policies seems driven simply by partisanship rather than wise and prudent consideration of real-world facts and the needs of the community.
At a Catholic law school, though—and at Notre Dame—we can take comfort, and find inspiration, in the fact that our tradition has taught for centuries that law is an “ordinance of reason” and that its aim is the “common good.” Our faith provides a vision of what law, done rightly, is supposed to be, and really can be. It is not an exaggeration to say that the study and practice of law is elevated, for us, because we know that our human efforts to develop and implement just and efficient laws are reflections of—they participate in—the very mind of God. . . .
. . . At Notre Dame Law School, three words, or themes, come up again and again in our conversations about how we should do what we do, how we can strengthen and enrich this university and about what makes us different from the many other fine law schools. Those words are community, integration and vocation. . . .
This upcoming event at the Lumen Christi Institute at the University of Chicago looks really good -- if you are in or near Chicago, check it out (and report back!):
“The Human Person, Economics, & Catholic Social Thought”
a panel discussion with
Gary Becker (University of Chicago)
Francis Cardinal George, O.M.I. (Archbishop of Chicago)
Mary Hirschfeld (Villanova University)
F. Russell Hittinger (University of Tulsa)
Rachel Kranton (Duke University)
Tuesday, February 18, 2014
If I were a real lawyer (and not just a law professor), I would be a prosecutor. For one thing, prosecutors have the coolest title ever. According to the Model Rules of Professional Responsibility, “[a] prosecutor has the responsibility of a minister of justice and not simply that of an advocate.” “Minister of Justice.” How awesome is that?
When I teach law students about the unique role of the prosecutor, and even when I talk to prosecutors themselves, I often get pushback. Students question whether it’s possible for lawyers to step outside their role as adversaries. Prosecutors question whether they have the time and resources to exercise their discretion with the kind of measured moral judgment that the “minister of justice” title implies.
They’re right to be skeptical. With a plea rate of 95-96%, prosecutors serve as judge and jury in most cases, deciding through plea agreements the crime of conviction and, in many cases, the sentence too. Despite the enormous power prosecutors wield, powerful incentives often drive them to take shortcuts, charging harshly and settling quickly even when guilt is not apparent. As legal scholars like Stephanos Bibas, Bill Stuntz, Daniel Medwed, and Ron Wright have detailed, there is often no investigation beyond the filing of the initial police report, and the volume of criminal cases, combined with overwhelmed and under-resourced trial judges, defense attorneys, and prosecutors, prevents robust adversarial testing in all but a tiny fraction of cases.
Despite that depressing backdrop, this week brought good news about the degree to which prosecutors are doing justice in the context of correcting injustice. According to a study recently released by the University of Michigan Law School, 2013 was a record year for exonerations. The National Registry of Exonerations added 87 new cases last year, bringing the total number of exonerations to 1,304 in a 24-year period. While at first blush, that seems like bad news for prosecutors—they got the wrong guys!—there’s a silver lining. According to the report,
[t]hirty-three known exonerations in 2013–-38% of the total-–were obtained at the initiative or with the cooperation of law enforcement. This is the second highest annual total of exonerations with law enforcement cooperation, down slightly from 2012 (39 cases, 49% of all exonerations in that year) but consistent with a pattern we described a year ago: police and prosecutors appear to be taking increasingly active roles in reinvestigating possible false convictions, and to be more responsive to claims of innocence from convicted defendants.
Under the ABA Criminal Justice Standards, prosecutors have a duty to “seek to reform and improve the administration of criminal justice.” “When inadequacies or injustices in the substantive or procedural law come to the prosecutor's attention, he or she should stimulate efforts for remedial action.” Despite that directive, the Innocence Movement has not always found friends among police and prosecutors. In a small number of cases, resistance has been a cover for prosecutorial misconduct, but in most it has been a result of the natural—though misguided—human tendency to ignore evidence that challenges us.
So what is driving the change in prosecutors’ willingness to re-examine closed cases? The best explanation, I think, is that the Innocence Movement has done a terrific job of using cases of wrongful conviction as teaching tools to educate the criminal justice community about the primary sources of error. Rather than point fingers (except in egregious cases of intentional misconduct), attorneys and clinical students involved in innocence litigation have worked to identify systemic problems, from the overuse of jailhouse informants to suggestive identification procedures, that can be improved by changes in law and policy. Not only has their work improved the quality of investigations and prosecutions, but it has made every actor in the system alert to the possibility of error, and consequently more attentive to cases in which known sources of error are present. As a result, today’s prosecutors are aware that even in cases where guilt seems clear, mistakes can be made.
The Innocence Movement deserves credit for its work, but so do the prosecutors themselves. Acknowledging that you (or one of your predecessors) have played a role in depriving an innocent person of his freedom is a bitter pill to swallow. The late Judy Schwaemle, one of my mentors and one of the best, most committed prosecutors I have had the good fortune to know, once shared with me her difficulty in coming to terms with a case of wrongful conviction. She said that even when confronted with DNA evidence proving she had prosecuted the wrong person, it was an intellectual and emotional struggle to acknowledge the defendant was not guilty. The truth was so painful that she tried to explain away the evidence in every way possible. I have to imagine that other prosecutors of goodwill also struggle mightily to come to grips with their fallibility and its consequences.
Given the courage and humility it takes to admit error in this way, I find the trend reflected in the Michigan report especially heartening. It appears that in the postconviction context, prosecutors are increasingly living up to their role as ministers of justice. That is news to celebrate, and a trend I hope will continue.
February 18, 2014 | Permalink