1. Host Blawg Review;

2. Manipulate existing institutions to create chaos;

3. Assume control of target;

4. Repurpose target’s resources;

5. Profit.

Confused? If you swap “Host Blawg Review” for “Smuggle arms and funding to dissident factions”, you can better appreciate the brilliance of our plan; even if you can’t, the CIA and MI6 certainly can, as they’ve used variations of it for decades throughout the developing world. Subversive activity may not be the most glorious form of warfare, but it’s effective and, if nothing else, it tides one over until the next shooting war comes along, which it most certainly will.

I am delighted to be co-hosting this Unsilent Partners Blawg Review with Colin Samuels.  We are using flags to indicate our respective contributions.  When we write together we don’t actually write together at all.  We talk about what we plan to write about  and then write separately.  In this Blawg Review we did not respond to each other’s posts – as we have done and plan to do in future Unsilent Partners blog pieces.  It is worth noting that the British Armed Forces only went one year in the 20th Century without fighting in one or other part of the world – and that was, I am told, 1949.  I do, however, concur with Colin’s introductory remarks and add only this quotation… which appeals to my dark side…

A democracy which makes or even effectively prepares for modern, scientific war must necessarily cease to be democratic. No country can be really well prepared for modern war unless it is governed by a tyrant, at the head of a highly trained and perfectly obedient bureaucracy.
Aldous Huxley

On 25 October 1415 (St. Crispin’s Day), the Battle of Agincourt () was fought between fewer than 6,000 Englishmen under King Henry V’s command and approximately five times as many French troops. The battle demonstrated two things: 1) unless the man leading them is named “Napoleon”, French armies tend to fold like cheap tents; and 2) disruptive technology wielded by adept users can carry the day against overwhelming numbers. At Agincourt, the disruptive technology in question was the English longbow. Henry recognized the advantage of this weapon and archers comprised more than eighty percent of his forces; by comparison, the French forces were comprised more traditionally — approximately half were unmounted knights and infantry, with another five percent or so comprised of mounted knights. Henry had selected a narrow strip of ground bordered by dense woods to favor his archers and eliminate the French advantage in cavalry and numbers and the result was a decisive English victory wherein approximately 112 English were killed against as many as 10,000 French deaths. Nearly two centuries later, Shakespeare’s Henry V described the English forces at Agincourt as a “happy few” and a “band of brothers”:

This day is called the feast of Crispian:

He that outlives this day, and comes safe home,

Will stand a tip-toe when the day is named,

And rouse him at the name of Crispian.

He that shall live this day, and see old age,

Will yearly on the vigil feast his neighbours,

And say ‘To-morrow is Saint Crispian:’

Then will he strip his sleeve and show his scars.

And say ‘These wounds I had on Crispin’s day.’

Old men forget: yet all shall be forgot,

But he’ll remember with advantages

What feats he did that day: then shall our names,

Familiar in his mouth as household words

Harry the king, Bedford and Exeter,

Warwick and Talbot, Salisbury and Gloucester,

Be in their flowing cups freshly remember’d.

This story shall the good man teach his son;

And Crispin Crispian shall ne’er go by,

From this day to the ending of the world,

But we in it shall be remember’d;

We few, we happy few, we band of brothers;

For he to-day that sheds his blood with me

Shall be my brother; be he ne’er so vile,

This day shall gentle his condition:

And gentlemen in England now a-bed

Shall think themselves accursed they were not here,

And hold their manhoods cheap whiles any speaks

That fought with us upon Saint Crispin’s day

“I have seen war. I have seen war on land and sea. I have seen blood running from the wounded. I have seen the dead in the mud. I have seen cities destroyed. I have seen children starving. I have seen the agony of mothers and wives. I hate war.”

On 21 October 1805, the Battle of Trafalgar saw the British navy outnumbered by the combined forces of the French and Spanish. Admiral Horatio Nelson prepared a brilliant and unorthodox plan of battle for his fleet. Conventional wisdom at the time held that opposing fleets should form into lines of battle parallel to one another, to maximize intra-fleet communications (using signal flags) and fields of fire. Notwithstanding, the British had enjoyed some success in recent battles at Camperdown and Cape St. Vincent by sailing straight at enemy fleets, disrupting their lines and relying on superior English training and gunnery to prevail. The plan was not without risks; during the approach to the French-Spanish line, the lead English ships (including Nelson’s flagship, Victory) would be exposed to sustained fire to which they could not answer. Nelson accepted those risks, believing that his opponents would shrink from the battle and that their skills were not equal to those of his men. Nelson’s signal officer raised his message to the men of his fleet — “England expects that every man will do his duty” — before his lines sailed toward the French and Spanish and into history.

“Firstly you must always implicitly obey orders, without attempting to form any opinion of your own regarding their propriety. Secondly, you must consider every man your enemy who speaks ill of your king; and thirdly you must hate a Frenchman as you hate the devil.”

Let me alone: I have yet my legs and one arm. Tell the surgeon to make haste and his instruments. I know I must lose my right arm, so the sooner it’s off the better.
Lord Horatio Nelson

***

And so to Bitcher & Prickman… not so much bloggers, but US lawyer cartoonist anarchists who would, without putting words in their mouths, appreciate the Nelsonian attitude to life and the law. Their blog and cartoons are very much worth a look…. it will improve your health and humour to have a look. You only need one arm, of course, to click a link.    Brian Tannebaum in his blog Criminal Defense considers the issue of a judge who was not prepared to turn a blind eye to lawyers and clients being late.  Some judges shout about this… to little effect, it would seem.

On 22-23 January 1879, the Battle of Rorke’s Drift was fought between a desperate contingent of 139 British troops and a force of as many as five thousand Zulu warriors (Impis). Rorke’s Drift was a supply outpost and hospital facility supporting the British invasion of Zululand, in present-day South Africa. On 22 January, the main British force was poorly-deployed and, by some reports, poorly-supplied at Isandlwana ; there, the Zulus effectively wiped out the British and ended the invasion (although a subsequent British invasion was successful). Isandlwana remains Britain’s worst defeat by a native army. From Isandlwana, a detachment of between 4,000-5,000 Impis was sent to Rorke’s drift to finish off the contingent there. Three British officers — John Chard, Gonville Bromhead, and James Langley Dalton — assessed their circumstances — poor defenses, the desertion of a number of native troops, and, excepting a few wounded, only 120 healthy soldiers — and ordered the construction of rudimentary defenses from the supplies stored at the outpost. These hasty preparations were put to use over the following hours as the troops fell back into planned positions, shortening their lines of defense. These defenses held and Rorke’s Drift stands as an example of extraordinary heroism in the face of almost-certain annihilation. Eleven Victoria Crosses were awarded to the defenders of Rorke’s Drift — still the highest number ever awarded for a single engagement.

But if I needed to refer a client to a lawyer to actually investigate or file suit or try an internet defamation case, I would look for someone whose expertise included actually investigating or filing lawsuits or actually trying cases. Whether that lawyer had studied internet defamation law would not be important—I would figure that he could get up to speed in the niche quickly enough to neutralize any advantage that someone with six months’ study would otherwise have. This is what trial lawyers do: learn enough about disparate areas of knowledge quickly enough that their former ignorance is no longer a handicap.

While it would be brazen of me to claim expertise, I am more than competent at picking juries and at cross-examining witnesses; that is after 14+ years of actually picking juries and cross-examining witnesses, and studying diverse related fields outside the law. Expertise in those endeavors could not possibly be gained in six months by anyone. Fourteen years in, I still get better every year.

There are many similars areas, in which six months is not enough to even make a dent in becoming an expert (or even an “expert”).

There are undoubtedly many narrow areas in which one can become a sort of expert in six months, but here is the problem with the sort of “expertise” that can be acquired in six months: it’s transitory. If it took you six months to become expert in a subject, someone else can do the same as quickly. The law is often adversarial, and if your adversary is as motivated to become expert as you are, he can attain superior expertise as quickly as or quicker than you, even if he has spent the past decade honing the trial skills that you lack.

“I must study politics and war that my sons may have liberty to study mathematics and philosophy. My sons ought to study mathematics and philosophy, geography, natural history, naval architecture, navigation, commerce and agriculture in order to give their children a right to study painting, poetry, music, architecture, statuary, tapestry, and porcelain.”

War is an ugly thing, but not the ugliest of things. The decayed and degraded state of moral and patriotic feeling which thinks that nothing is worth war is much worse. The person who has nothing for which he is willing to fight, nothing which is more important than his own personal safety, is a miserable creature, and has no chance of being free unless made or kept so by the exertions of better men than himself.

John Stuart Mill

“Naturally the common people don’t want war; neither in Russia, nor in England, nor in America, nor in Germany. That is understood. But after all, it is the leaders of the country who determine policy, and it is always a simple matter to drag the people along, whether it is a democracy, or a fascist dictatorship, or a parliament, or a communist dictatorship. Voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is to tell them they are being attacked, and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same in any country.”

The landings by Britain, the U.S., and their allies on the beaches at Normandy faced more than a few challenges. Not the least of these were the inherent difficulties of attacking a well-prepared enemy on ground he controls. Norm Pattis discussed some of the challenges of winning on the road, describing a case where the prosecution was clearly the home team and he was, just as clearly, an unwanted visitor: “I keep reviewing this exchange and several others from trial today, wondering what happened and why. I see no logic and no law supporting some of what went on. As sleep flees it occurs to me I am in a foreign court. It is as if I have traveled to a foreign state to try a case among folks who know one another well and view my ways as foreign. I lack a home court advantage here: there are now bonds of trust between prosecutor and judge built by working together case after case. Discretion, when it is abused in this case, favors the familiar party, and in this case, that is the state. I am unnerved by this and bitter. The law may not insist on a perfect trial, but it demands a fair one. The subtle bonds of familiarity between prosecutor and judge breed a contempt for the outsider. My client deserves better, and tomorrow I must find a way to deliver it. That will require more kindness and patience still, and tonight I am struggling to summon it.”

The Nuremberg trials were a series of trials, or tribunals, most notable for the prosecution of prominent members of the political, military, and economic leadership of Nazi Germany after its defeat in World War II. The trials were held in the city of Nuremberg, Germany, from 1945 to 1946, at the Palace of Justice. The first and best known of these trials was the Trial of the Major War Criminals before the International Military Tribunal (IMT), which tried 22 of the most important captured leaders of Nazi Germany. It was held from November 21, 1945 to October 1, 1946. The second set of trials of lesser war criminals was conducted under Control Council Law No. 10 at the US Nuremberg Military Tribunals (NMT); among them included the Doctors’ Trial and the Judges’ Trial. (Wikipedia)

The work of adjudicating Europe didn’t end with the trials at Nuremberg. Duncan Hollis extended a warm blawgosphere welcome  to a new blog, Adjudicating Europe , although he would’ve preferred that its academic proprietors not blog anonymously. In a pair of posts, Peggy McGuinness noted the return of the United States to the U.N.’s Human Rights Council and suggested a number of ways the U.S. and other democratic states can help to reform the Council. There’s certainly a lot to do. Just this past week, the Council issued a one-sided report which condemned Israel for its military actions against Gaza and the Hamas terrorists who control it.

In a series of posts, Lyle Denniston analyzed the issues and contentions concerning the status of the detainees at the Bagram facility in Afghanistan. He writes: “For almost all of the time it has been in office,  the Obama Administration has held to the position that the Supreme Court’s ruling in 2008 giving some terrorism suspects a right to challenge their detention by the U.S. military does not apply, in any way, to prisoners being detained at Bagram air base in Afghanistan — a prison population now said to number more than 600.” The challenge mounted by advocates for those detainees is now before a Court of Appeals and seems likely to make its way to the Supreme Court in the near future.

Today I am talking to Lord Falconer, a former Lord Chancellor, about two important and interesting themes – assisted dying and his amendment to the Suicide Act defeated in the Lords recently and secondly his thoughts on the reasoning behind establishing a new Supreme Court and the direct it may, in time, take.

Lord Falconer became Lord Chancellor In 2003, with the remit of abolishing the office. His reform included the creation, for the first time, of a Supreme Court for the UK, the creation of a commission to appoint judges, making a full-time independent judge the Head of the Judiciary for England and Wales, and introducing an elected Speaker for the House of Lords.

Listen to the podcast

This complements the two pieces on (a) assisted suicide and (b) The Supreme Courts of the US and UK below.

]]> http://unsilentpartners.wordpress.com/2009/07/28/lawcast-152-lord-falconer-on-assisted-dying-and-the-new-supreme-court-of-the-united-kingdom/feed/ 0 charonqc http://unsilentpartners.wordpress.com/2009/07/23/the-supreme-court-contrasting-themes-us-and-uk/ http://unsilentpartners.wordpress.com/2009/07/23/the-supreme-court-contrasting-themes-us-and-uk/#comments Thu, 23 Jul 2009 10:16:52 +0000 Charon QC http://unsilentpartners.wordpress.com/?p=65 ]]> We thought this week  that it would be interesting to look at the United States Supreme Court and contrast with a quick review of the new United Kingdom Supreme Court which opens for business in October.

Colin Samuels has written the section on the United States.  I plan to publish an overview of the UK Supreme Court shortly and I am doing two podcasts to supplement our coverage – first with Carl Gardner, author of the Head of Legal Blog and a former government lawyer and, second, with Lord Falconer, the former Lord Chancellor, who introduced the legislation to establish the new UK Supreme Court. The podcasts will be completed by Tuesday 28th July.

Lawcast 149: Carl Gardner on the new UK Supreme Court and the issue of Law Officer’s advice to the government

Today I am talking to Carl Gardner a former government lawyer and author of the Head of Legal blog about the new Supreme Court and the recent decision of Mr Justice Blake in HM Treasury v The Information Commissioner about the extent to which the law officers advice can be made public or discoverable under the freedom of Information Act.

Listen to the podcast

Podcast version for iTunes

Head of Legal Blog: Law Officer’s advice

HM Treasury v The Information Commissioner [2009]

Lawcast 152: Lord Falconer on assisted dying and the new Supreme Court of the United Kingdom

Today I am talking to Lord Falconer, a former Lord Chancellor, about two important and interesting themes – assisted dying and his amendment to the Suicide Act defeated in the Lords recently and secondly his thoughts on the reasoning behind establishing a new Supreme Court and the direct it may, in time, take.

Lord Falconer became Lord Chancellor In 2003, with the remit of abolishing the office. His reform included the creation, for the first time, of a Supreme Court for the UK, the creation of a commission to appoint judges, making a full-time independent judge the Head of the Judiciary for England and Wales, and introducing an elected Speaker for the House of Lords.

Listen to the podcast

***

United States Supreme Court
Colin Samuels

The nomination of Judge Sonia Sotomayor to the United States Supreme Court and the recent hearings concerning that nomination have held the attention of the American legal community for a couple of months now. The stakes are certainly high enough, with a close split amongst the nine justices on many of the more important issues of the day. For all that rests on this nomination, however, there’s been a relative lack of drama in the nomination and the hearings before the Senate. There’s been such a lack of drama, with Judge Sotomayor’s confirmation all but guaranteed, that for the last few weeks my thoughts have turned instead to the confirmation spectacle itself.

The United States’ Constitution is an extraordinary — and extraordinarily vague — document. Although it establishes the Supreme Court, it doesn’t specify how many justices decide its cases; Article 3, Section 1 provides only that “The judicial power of the United States, shall be vested in one Supreme Court….” One of the first acts of the first Congress was to pass the Judiciary Act of 1789, setting the membership of the Supreme Court at six justices, including a Chief Justice. The current court composition was finalized at one Chief Justice and eight Associate Justices by the Judicial Act of 1869. A concerted attempt was made by President Franklin Roosevelt in 1937 to “pack the court” by increasing the number of justices to as many as fifteen, with the new justices nominated to ratify his New Deal policies. The introduction of Roosevelt’s legislation is suspected to have caused a shift in the Supreme Court’s vote on a key case, but the public’s perception of the unprecedented Executive action and its subsequent defeat in the Senate damaged Roosevelt’s political authority.

Although the Constitution provides for the nomination and confirmation process, it doesn’t mandate hearings in which Senators ask long-winded, largely pointless questions and nominees give vague, evasive non-answers. Pursuant to Article 2, Section 2, the president “by and with the advice and consent of the Senate, shall appoint… judges of the Supreme Court….” The Constitution describes ends, in other words, but is silent as to means. Prior to the Twentieth Century the hearings processes we are familiar with today, where a nominee testifies before the Senate Judiciary Committee in a carefully-scripted and controlled public performance, were uncommon. In 1925, President Calvin Coolidge’s nominee, Attorney General Harlan Stone requested to appear before the Senate to address political opposition to his nomination. Following World War II, hearings became an accepted part of the confirmation process, but even at that point a nominee’s performance before the Senate was not considered a prerequisite to confirmation. In 1949, President Harry Truman’s nominee, former Senator Sherman Minton, declined the Senate’s kind invitation to appear, writing, “I feel that personal participation by the nominee in the committee proceedings relating to his nomination presents a serious question of propriety, particularly when I might be required to express my views on highly controversial and litigious issues affecting the court.” Minton was confirmed nonetheless.

Now a Supreme Court confirmation occurring without at least cursory public hearings before the Senate or a nominee not present at such hearings would be astonishing. Indeed, nominees’ performances at these public hearings has taken on an outsized importance, overshadowing a nominee’s previous years of scholarship and jurisprudence and, more recently, precluding those with extraordinary academic or judicial backgrounds from being confirmed or nominated at all. It seems unlikely that this state of affairs was the intention of the Founding Fathers and, indeed, it’s a result of political developments over the past few decades.

In the late 1960s, the liberal Supreme Court under Chief Justice Earl Warren had diverged from the more conservative Senate and, some might argue, more mainstream elements of Congress and American society generally. Because Supreme Court justices enjoy a life term (except in instances of notable misconduct) and a “court packing” plan like Roosevelt’s would be politically untenable, the confirmation process assumed greater importance as a means of control over the Court and a forum for expressions of Senatorial disapproval of the Court’s activism.

The first real showdown of this new era concerned the proposed elevation of Warren Court Associate Justice Abe Fortas to Chief Justice upon Chief Justice Earl Warren’s retirement. Fortas, who had been a close — sometimes too close — friend, confidant, and advisor to President Lyndon Johnson before and during his tenure at the Court. Owing to the Senate’s anger over many of the Warren Court’s decisions and, to some extent, dissatisfaction with President Johnson, Fortas’ confirmation hearing became an intensely political affair and a clear departure from customary practices to that point. Although Associate Justice Thurgood Marshall’s confirmation had also been somewhat contentious, opposition to his nomination was principally regional, with Senators from Southern states opposing the first African-American nominee. Fortas’ confirmation hearings, on the other hand, were clearly a political brawl. Fortas’ views, including his belief in expansions of Presidential powers, and his conduct, such as his acceptance of a university honorarium which some believed was excessive and offered to improperly influence the justice, were scrutinized, as were his connections with the President and participation in the Warren Court. Ultimately, a filibuster was begun to block the confirmation vote; a cloture vote fell short of the supermajority required to end the filibuster and Fortas requested that his nomination be withdrawn by President Johnson.

President Ronald Reagan’s 1987 Supreme Court nominee, Judge Robert Bork, was the next notable nominee to become embroiled in a politicized confirmation process; the partisanship and severity of his hearings was so unprecedented that the verb “to bork” entered the English language to mean the political destruction of a nominee for public office. Bork was in many ways an exemplary nominee. He was a former Solicitor General, formerly the acting Attorney General during and in the months after the “Saturday Night Massacre” (in which President Richard Nixon fired Special Prosecutor Archibald Cox, who had been appointed to investigate the Watergate affair), a Federal Circuit Judge, and a noted antitrust legal scholar. Bork was particularly noted as a proponent of Constitutional Originalism and a critic of judicial activism. Anticipating Bork’s nomination, Senate Democrats and a broad spectrum of liberal social and political interest groups mobilized quickly to oppose him. Within the hour of Bork’s nomination, Senator Ted Kennedy issued an astonishingly personal condemnation of Judge Bork:

In the Watergate scandal of 1973, two distinguished Republicans — Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus — put integrity and the Constitution ahead of loyalty to a corrupt President. They refused to do Richard Nixon’s dirty work, and they refused to obey his order to fire Special Prosecutor Archibald Cox. The deed devolved on Solicitor General Robert Bork, who executed the unconscionable assignment that has become one of the darkest chapters for the rule of law in American history.

That act — later ruled illegal by a Federal court — is sufficient, by itself, to disqualify Mr. Bork from this new position to which he has been nominated. The man who fired Archibald Cox does not deserve to sit on the Supreme Court of the United States.

Mr. Bork should also be rejected by the Senate because he stands for an extremist view of the Constitution and the role of the Supreme Court that would have placed him outside the mainstream of American constitutional jurisprudence in the 1960s, let alone the 1980s. He opposed the Public Accommodations Civil Rights Act of 1964. He opposed the one-man one-vote decision of the Supreme Court the same year. He has said that the First Amendment applies only to political speech, not literature or works of art or scientific expression.

Under the twin pressures of academic rejection and the prospect of Senate rejection, Mr. Bork subsequently retracted the most neanderthal of these views on civil rights and the first amendment. But his mind-set is no less ominous today.

Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.

America is a better and freer nation than Robert Bork thinks. Yet in the current delicate balance of the Supreme Court, his rigid ideology will tip the scales of justice against the kind of country America is and ought to be. The damage that President Reagan will do through this nomination, if it is not rejected by the Senate, could live on far beyond the end of his presidential term. President Reagan is still our President. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate, and impose his reactionary vision of the Constitution on the Supreme Court and on the next generation of Americans. No justice would be better than this injustice.

Senator Kennedy’s televised speech set the tone for a particularly brutal confirmation battle in which such minutiae as Bork’s video rental records were widely publicized.

In many ways, the strength of the opposition to the nomination took the Reagan Administration and Senate Republicans unawares and they failed to respond promptly or effectively to bolster Bork’s narrowing chances at confirmation. For his part, Judge Bork did not make much of an effort to “water down” his lengthy record or to try to put the Senate or the public at greater ease with his nomination. His demeanor was at times angry and defensive and he was bluntly critical of some legal decisions, such as the Roe v. Wade decision, which enjoy solid popular support. Correctly sensing that the nomination was failing, the “Great Communicator” President Reagan spoke at length about his own Constitutional thinking, much of which he believed was shared by Judge Bork:

During the hearings, one of Judge Bork’s critics said that among the functions of the Court was reinterpreting the Constitution so that it would not remain, in his words, “frozen into ancient error because it is so hard to amend.” Well, that to my mind is the issue, plain and simple. Too many theorists believe that the courts should save the country from the Constitution. Well, I believe it’s time to save the Constitution from them. The principal errors in recent years have had nothing to do with the intent of the framers who finished their work 200 years ago last month. They’ve had to do with those who have looked upon the courts as their own special province to impose by judicial fiat what they could not accomplish at the polls.

….

So, my agenda is your agenda, and it’s quite simple: to appoint judges like Judge Bork who don’t confuse the criminals with the victims; judges who don’t invent new or fanciful constitutional rights for those criminals; judges who believe the courts should interpret the law, not make it; judges, in short, who understand the principle of judicial restraint. That starts with the Supreme Court. It takes leadership from the Supreme Court to help shape the attitudes of the courts in our land and to make sure that principles of law are based on the Constitution. That is the standard to judge those who seek to serve on the courts: qualifications, not distortions; judicial temperament, not campaign disinformation.

Despite President Reagan’s extraordinary public support for his nominee, the Senate voted to reject the nomination. Judge Bork was so disgusted by the process and the treatment he had suffered that he resigned his judgeship the following year.

The “borking” of Judge Bork began a tendency to nominate individuals who were less legal scholars than legal ciphers, less distinguished judges than judges with short records comprised mainly of votes without written opinions. This dismaying trend culminated in President George W. Bush’s 2005 nomination of White House Counsel Harriet Miers. President Bush had sought to avoid the “errors” committed by President Reagan — nominating a conservative with an extensive and controversial record — and by his father, President George H. W. Bush — nominating a “conservative”, Justice Davis Souter, who lacked an extensive and controversial record, but who was such a cipher to the President that he turned out not to be a conservative at all. In nominating Miers, he chose someone whom he had known for a decade-and-a-half, someone who shared his religious and social beliefs, and someone who had proven herself to be a reliable if unremarkable attorney. She was so unremarkable, however, that her nomination immediately drew fire from both liberals and conservatives. Her lack of either state or Federal judicial experience at any level, her lack of a meaningful record on any of the key legal issues likely to come before the Court, and her close personal ties to the increasingly-unpopular President Bush jeopardized her chances of confirmation from the outset. Early meetings she had with Senators and advisors demonstrated her lack of preparedness for a position on the high court or even for the confirmation hearings. After less than a month, Miers asked that her nomination be withdrawn, citing as her reason a request made by Senate allies to provide political cover for the withdrawal.

After this, certain lessons had been learned about the process of Presidential nomination and Senate advice and consent sketched by Article 2, Section 2: First, a nominee’s background should tick the right boxes — prominent law school, perhaps a clerkship at a Circuit court or even the Supreme Court, practical experience with a notable law firm, tenure as a judge, preferably at the Federal Circuit level, and a lack of personal scandal. Second, the nominee must be recognized as a top attorney and a legal authority, but one whose public and published statements are surprisingly noncontroversial and vague. Third, the nominee’s jurisprudence must be shown with participation in important cases, ideally on the “right” side of the decision. Fourth, the nominee must have published a few well-written opinions, articles, or treatises which, to the extent these are outside the mainstream, are not so far out and are at least internally consistent and supported by a broad swath of the legal community. Fifth, and perhaps most important, the nominee must be able to weather the confirmation process by learning his or her script, maintaining his or her composure, and never offering anything approaching an elaboration on what’s already on the record or suggesting any semblance of a judicial philosophy, unless unswerving fealty to the letter of the Constitution (whatever this means) counts as a judicial philosophy. The corollary — call it the Souter Corollary — is that while a nominee can be essentially a mystery to everyone else, the President must know that nominee’s mind to a virtual certainty.

Judge John Roberts‘ nomination represented a refined, if not perfected, understanding of these lessons. On paper, Roberts seemed almost too good to be true and in his opening statement he said all the right things:

My personal appreciation that I owe a great debt to others reinforces my view that a certain humility should characterize the judicial role. Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire. Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath. And judges have to have the modesty to be open in the decisional process to the considered views of their colleagues on the bench.

Roberts’ metaphor about “umpires calling balls and strikes” (or for my friends in the U.K., umpires calling cricket stuff I don’t comprehend) has become the definition of what the public and the Senate expect a Supreme Court justice to be. SCOTUSblog recently counted more than two dozen Senatorial references to “umpires” and/or “balls and strikes” in the recent Sotomayor hearings.

Just as President Bush managed to learn the necessary nomination lessons, President Barack Obama demonstrated his understanding with his nomination of Judge Sotomayor. Supreme Court litigator Tom Goldstein announced soon after the nomination that any doubt about Sotomayor’s confirmation chances was gone:

Basically before it ever started, the fight over the confirmation of Sonia Sotomayor is done. She is going to be confirmed by a relatively wide margin and without a substantial, mainstream assault on her credentials or suitability for the bench.

….

The phase of defining a nominee in the public’s eye now lasts around forty-eight hours. In that time Harriet Miers was pretty much done — finished. By this point, there has been a huge amount of press coverage and opponents have had the opportunity to make their case. It’s a shockingly short period (unfortunately so), but it reflects (a) the ready availability of research materials, and (b) the rapid turn-over of news cycles.

For a nominee like Sonia Sotomayor, that is the life-or-death period. Once the public is comfortable with her suitability, then the irreducible political reality is that there is no serious prospect of vigorously challenging the nation’s first Latina Supreme Court nominee when the President’s party has an overwhelming numerical advantage in the Senate.

….

[F]or Sonia Sotomayor, it is all over but the swearing in.

If Goldstein is correct and the properly-managed nomination assures confirmation within days (and long before the confirmation vote), what is the point of this process? Goldstein suggests that the process is not so much a check on the Judiciary, as it was with Fortas in the 1960s, but on the Executive:

[T]he confirmation hearings are an opportunity for the Administration — if it can seize the offensive — to use a popular nominee to further define the President. Though the general public does not care much about the Court, the perception of a nominee in a high-profile nomination process does translate to some extent onto the President that made the appointment. If she is regarded as a radical liberal, for example, that will say a good deal about the President who picked her.

Professor Jack Balkin has written that the hearings are valuable in communicating popular values and opinion to the Judiciary:

The short answer is that the hearings are often more about the Senate–as representatives of various strands of public opinion–than the candidate. They are opportunities for Senators to make claims about what they believe are the mainstream understandings of the U.S. Constitution. The candidate cannot say what he or she thinks the law should be, or how they would decide particular cases, but the Senators can and do make claims along these lines. In the process, they create what I have previously called the”constitutional catechism”: the set of assumptions, beliefs, and positions that every candidate who claims to be in the mainstream of American constitutional thought must share. (For example, Griswold v. Connecticut, which protected the right to purchase contraceptives, was rightly decided; Brown v. Board of Education was rightly decided; and sex equality is required by the Constitution.) A candidate who cannot bring himself to agree with the catechism (as Robert Bork famously could not) will be in trouble, but most candidates find ways to hedge and talk around the subject artfully. (In this task John Roberts was a master).

But what the candidates actually say is far less important than what the Senators expect them to agree with. By shaping the constitutional catechism at hearings, the Senate gives an account of what Americans expect from their Supreme Court Justices.

Erwin Chemerinsky, the new Dean of the University of California-Irvine School of Law, is somewhat less sanguine about the diminished meaning of the confirmation process:

As with the Roberts and Alito hearings, it is not clear what all of this accomplished. It reinforced a misleading image of law for those who were listening. Obviously, judges make as well as apply the law; everything the Supreme Court does makes the law.

Ultimately, the hearings let Senators have some time to appeal to their political base. It let the American people, or at least those who paid attention to the hearings, see the person who will be on the Court for the next few decades. Perhaps that is enough or perhaps it is time to again think about how to make the confirmation hearings more meaningful.

It all boils down to this: politics being what they are, this cornerstone of the American judicial system will remain, for the foreseeable future, the most predictably dull spectacle on television unless Paris Hilton’s reality series is renewed. I may not agree with everything — or much of anything — Dean Chemerinsky says, but on this issue I tend to agree that the framers of the Constitution envisioned and the American people deserve something more meaningful.

The legalo-ethics position on assisted suicide
Mike Semple Piggot

I was talking to Colin Samuels about the amendments to our law on suicide being put forward by Lord Falconer – an amendment which failed to pass scrutiny in the House of Lords. We thought it would be interesting to debate this issue, comparing and contrasting the position taken in the United Kingdom and in the parts of the United States.

As always – we welcome your contribution to knowledge, analysis and discussion in the comments section.  I set out the current position, as best as I can, in the United Kingdom with a few observations.

Lawcast 152: Lord Falconer on assisted dying and the new Supreme Court of the United Kingdom

Today I am talking to Lord Falconer, a former Lord Chancellor, about two important and interesting themes – assisted dying and his amendment to the Suicide Act defeated in the Lords recently and secondly his thoughts on the reasoning behind establishing a new Supreme Court and the direct it may, in time, take.

Lord Falconer became Lord Chancellor In 2003, with the remit of abolishing the office. His reform included the creation, for the first time, of a Supreme Court for the UK, the creation of a commission to appoint judges, making a full-time independent judge the Head of the Judiciary for England and Wales, and introducing an elected Speaker for the House of Lords.

Listen to the podcast

The Guardian reports: The death of Sir Edward Downes and his wife Lady Joan is likely to add further intensity to the debate over the law on assisted suicide, as it continues to be subject to both political and legal challenge.

Despite former Lord Chancellor  Lord Falconer’s championing of an amendment to the law on assisted suicide which failed in the Lords recently – the law remains as it was, subject to developing DPP discretion on prosecution (Infra),  in 1961 – providing  the interesting anomaly where an accessory can incur liability when the principal does not commit a criminal offence.

1. THE  LAW ON SUICIDE

The Suicide Act 1961 decriminalised the act of suicide so that those who failed in the attempt would no longer be prosecuted (S.1)

section 2(1) states:

A person who aids, abets, counsels or procures the suicide of another, or attempt by another to commit suicide shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years”.

Article 2 of the European Convention on Human Rights provides:

1. Everyone’s right to life shall be protected by law. No-one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

European Convention on Human Rights

Pretty v Director of Public Prosecutions (2002) 1 AC 800 saw the first human rights challenge to the law on suicide. The House of Lords found that Mrs Pretty’s art 8(1) rights were not engaged by the DPP’s refusal to undertake that he would not consent to her husband’s prosecution if he assisted her in committing suicide. The European Court of Human Rights found that they were: Pretty v United Kingdom (2002) 35 EHRR 1. The decisions were clearly inconsistent.

In R (Purdy) v Director of Public Prosecutions [2009] EWCA Civ 92 …

Lord Judge CJ stated:  “Assisted suicide is a crime. That is clear and unchallenged in this case. The reason is simple. Section 1 of the Suicide Act 1961 abrogated the rule of law that suicide is a crime. However section 2 of the Act continues to impose criminal liability for complicity in another’s suicide…

In short, the law which governs this case was made by Parliament. It is clear and unequivocal. We cannot subject it to judicial interpretation and produce a meaning which the statute does not bear. The statute does not admit of exceptions. We cannot suspend or dispense with the law. That would contradict an elementary constitutional principle, the Bill of Rights itself . Parliament alone has the authority to amend this law and identify the circumstances, if any, in which the conduct of the individual who assists or attempts to assist another to commit suicide should be de-criminalized.”

The role of the DPP

Attention turned to the role of the DPP.   Section 2(4) of the Suicide Act 1961  provides “(4) … no proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions.”

Lord Judge in R (Purdy) v Director of Public Prosecutions [2009] went straight to the heart of the matter: “ The real question which arises is this: can the Director of Public Prosecutions (“the DPP”) be required to promulgate an offence-specific policy identifying the facts and circumstances he will take into account when deciding whether, on the assumption that there is sufficient evidence to prosecute a defendant under section 2(1), it will not be deemed in the public interest to do so? The question arises because the appellant, Ms Purdy, who suffers a debilitating illness, has declared her wish to travel abroad to take her own life. For the purposes of the forensic argument her claim is based on her wish to know whether or not her husband, Mr Puente, will be prosecuted if, in these circumstances, he aids and abets her suicide: in reality she wants to know that he will not.”

The Court of Appeal held: The Director of Public Prosecutions did not act unlawfully in failing to publish detailed guidance as to the circumstances in which individuals would or would not be prosecuted for assisting another person to commit suicide.

This is a complex and emotive issue and The House of Lords, which is yet to deliver judgment on a further appeal by Purdy, acknowledged last month that the offence of assisted suicide was being committed but there was no clear guidance as to whether prosecutions should be brought.

The Guardian notes: “If it is up to prosecutors up and down the country [to decide whether to prosecute], I can see the need for a code to guide them as to consistency,” the senior law lord, Lord Phillips, said.

This is but a brief summary of the law going straight to the salient issues.

2.  LORD FALCONER’S ATTEMPT TO AMEND THE LAW ON ASSISTED SUICIDE

Attempts to change the law suffered a fresh blow last week when an amendment to the 1961 Suicide Act proposed by the former lord chancellor, Lord Falconer, was defeated. This month the British Medical Association also opposed a change to the law.

(a) Background

Under United Kingdom  law it is not against the law to travel abroad to have an assisted suicide in a country where it is legal, but it is against the law to accompany or enable somebody to travel abroad to die - a crime punishable by up to 14 years in prison (Supra).

Baroness Jay said in a statement to the press: “We need to wake up to the reality of what is happening. There are now nearly 800 Britons who are members of the Swiss assisted suicide clinic Dignitas, and over 100 Britons who have travelled abroad to die.”

The authority to prosecute under section 2(4) Suicide Act 1961 lies with the Director of Public prosecutions and while the DPP has declined to promulgate a specific policy on when he will or will not prosecute (Infra) the current Director of Public Prosecutions (DPP) and his predecessor have not sought prosecutions for those cases where assisted suicide has been evident, citing insufficient public interest in doing so.

(b) Lord Falconer’s amendement

An amendment to the Coroners and Justice Bill put forward by former Lord Chancellor Lord Falconer  (defeated in Parliament in July 2009), was designed to protect from criminal prosecution those who assist their loved ones in travelling abroad to end their lives.

A note on the Samaritans website states: ” Writing in the Times, Lord Falconer said that he was not calling for a full scale review of the suicide law, as this “important debate needs proper time and full engagement from both the public and Parliamentarians”. Instead, he stated, he is tabling the amendment to make sure “that the law reflects the sensible position adopted to date by the courts and the DPP, while protecting people from abuse”.

The proposed amendment said that two doctors must confirm, independently of each other, that the person travelling abroad to die is terminally ill and competent to make such a decision. The patient must also put their request in writing in the presence of an independent witness who does not stand to benefit from their death.

A similar amendment by former Health Secretary Patricia Hewitt was defeated in the Commons.

3. ETHICAL, RELIGIOUS AND MORAL OBJECTIONS

Here I do no more than collate a few statements gleaned from press reports and I do so without comment at this stage.

The Most Reverend Peter Smith, the Archbishop of Cardiff, said: “Legalising assistance with suicide is morally wrong in itself and would put vulnerable people at grave risk”

Lord Alton of Liverpool said: “This is the third time we have had an attempt to legislate in this way in this Parliament.” He added the British Medical Association and the royal colleges “remain opposed to any change” because, he says, “they know it would change irreversibly the medical profession if doctors and nurses have to become destroyers of life rather than defenders”.

Dr Peter Saunders, director of Care Not Killing Alliance, argues that the existing law does safeguard against an abuse of the system. He says Lord Falconer is “dangerously naïve” to suppose that people who are helped to commit suicide are always “‘loved ones’”, stating that people with “sinister motives” could exploit a change in the law.

4.  SUPPORT FOR CHANGE

There is, c;learly, support for change.  Lord Falconer and Baroness Jay had considerable support, if not quite enough, in the Lords.  The DPP and his predeccessor have not sought prosecution in cases of assisted suicide for many years.

The Samaritans note: Pro-euthanasia campaigners, however, welcomed Lord Falconer’s proposal. Sarah Wootton, chief executive of Dignity in Dying – an organisation that advocates assisted dying for terminally ill patients, said that the public “overwhelmingly support change”.

Ms Wootton commented that the proposed amendment “gives politicians the opportunity to listen and act.” She added: “We cannot directly regulate foreign assisted suicide clinics, but we can change the law to end the unnecessary threat of prosecution whilst safeguarding against abuse.”

5. CONCLUSION

For my part, I support the amendment proposed by Lord Falconer and Baroness Jay.  I use the phrase’ ‘for my part’ carefully (for I do not seek to speak for others in this blog debate)  and to apply only to myself should I be in the unfortunate position later in life of needing to take my own life due to medical circumstance.

I would like to have the right to die in this country by medically supervised suicide – should I be in the unfortunate position of having to end my own life.  The law is unlikely to change in my remaining lifetime to permit that.  If I had to resort to going to Dignitas in Switzerland or some other ethanasia frendly jurisdiction I would want to die with someone I cared about with me – if they could bring themselves to assist in travel.  I believe that it is an unassailable personal freedom to determine the manner of my owbn living on Earth, subject to the usual caveat about harm to others or infringeing laws likely to harm others.

Under the present Suicide Act 1961 I am allowed to blow my own head off with a 12 bore shotgun (provided I have a firearms licence) or perhaps do as a taxi driver did only the other day and decapitate myself  by tying a rope around my neck, the other end of the rope tied to a solid object, and then drive very rapidly away.  I could even overdose or use other horribly painful methods of suicide which may well not succeed in killing me.  Surely, our government can do better than this and allow those who wish to die, for good medical reason, to die with dignity and in a medically supervised and painless mway? Surely our government and ourt people can permit freedom of choice (subject to the safeguards proposed by Lord Falconer) and allow us that individual freedom of choice and not bring prosecution or the threat thereof down on the heads of loved ones who assist?

We all have our views and thoughts on this.  I hope you will express yours.

PODCAST WITH LORD FALCONER

I have just heard that Lord Falconer, former Lord Chancellor,  who tabled the amendment will do a podcast with me on the subject and I will post this on the Charon QC blog and on Unsilent Partners when it is published.  I don’t have a precise date yet.

*****

RESPONSE BY COLIN SAMUELS

I agree with most everything you’ve said. While such agreement makes for a poor debate, I hope that we’ll still enjoy a lively discussion! Come to think, however, perhaps “lively” is a poor choice of words to associate with our topic this week? I digress.

Lord Falconer’s effort is a humane one and, despite the unfortunate defeat of his amendment in the House of Lords, hopefully not the last such effort to address this important concern. As you noted a couple of weeks ago, Falconer has recognized that the state’s decision not to prosecute family members and others who accompany terminally ill persons to their suicides is of little reassurance to those relatives, friends, and patients:

We are in this awful situation where people who travel with relatives probably won’t be prosecuted, but can’t be sure. It means people are going to clinics on their own, or going earlier than they otherwise would, which can’t be right. In my view rightly, the [Director of Public Prosecutions] has refused to prosecute around 100 people in these cases. The law must be brought in line with actual practice and the change in public views on these issues.

That prosecutions could be brought, even though they generally have not been, inhibits free association, free movement, and other legal conduct, and is also an open invitation for selective enforcement against unpopular defendants or in celebrated cases. Any of these strike me as more damaging to society overall than would be the decisions of a relative few to end their lives when they choose to do so, in a legal place and manner, and supported by family and friends. Essentially, Falconer’s initiative is a call to harmonize our laws with current popular thinking about the role of government in private decision-making and the place of the competence of individuals to assess their own most critical needs. That laws should be carefully considered before enactment and consistently applied thereafter seems self-evident; I see no compelling reason why such general principles should not be applicable to an emotional and religiously-sensitive issue such as this one.

It’s certainly not a new issue. The concept of a “rational death” dates at least as far back as Classical Greece and the founder of the Stoic school of philosophy, Zeno of Citium. Amongst the Stoic beliefs was “Kathekon”, which (I’m so far out of my depth that I can’t see it from here) comprises “perfect” actions which are attuned to nature’s perfection. One aspect of Kathekon was the understanding that a person’s death could be prompted to occur at an optimal time. In an account by Diogenes Laërtius, Zeno’s somewhat odd demise is described. Already into his seventies in an era when the average lifespan was approximately half that age, Zeno was returning from his school when he stumbled and injured his toe. Taking this as the signal that it was his time to die, he suffocated himself. It’s worth noting that that Stoic morality did not sanction frivolous, senseless suicides; Zeno’s story is presented as the considered act (however briefly so) of an intelligent man. Whether his act of self-destruction was hyper-rational or irrational is difficult to assess, considering the probably apocryphal nature of the story and the obscurity of his morality. Regardless, it illustrates humanity’s timeless desire to control the seemingly-uncontrollable end of one’s life and to ensure that one’s death is comfortable and meaningful, as hopefully his or her life has been to that point.

In modern times, various religions hold that an afterlife provides that sense and meaning and, further, that these are diminished or destroyed entirely by suicide. Apart from some members of the medical profession, I think that it’s safe to say that the various arguments against assisted suicide, voluntary euthanasia, or other variations of these end-of-life decisions are generally based on religious considerations, directly or indirectly (where religious norms have become cultural norms as the will of the majority over time). As has been the case with debates about abortion rights and, to a somewhat lesser extent, the death penalty, clergy and the religious faithful are often the most outspoken opponents of these laws. While one can appreciate the consistency of their position — that all lives must be protected, from conception to natural death, regardless of society’s subjective determinations about the quality or value of those lives — the religious basis for that view cannot (or should not) be an adequate and appropriate basis for laws promoting that viewpoint or opposing alternative beliefs.

In liberal, heterogeneous democracies like Britain’s and America’s, laws based solely upon orthodox religious values are simply untenable over the long term. If the current generation are orthodox believers, the next may not be; the current majority belief may be diluted by an influx of adherents to other faiths; the irreligious naturally resist faith-based legal or moral coercion. It seems futile to suppose that the right approach to “values” lawmaking is to adopt an atheistic position to counter differences between religions or to count noses and adopt the beliefs favored by the greatest number of people. Difficult though it may be to reconcile the seemingly irreconcilable differences amongst various identity groups, such reconciliation is necessary to maintain a cohesive society.

Even though suicide would be unthinkable for them, when death is near or chronic illness becomes unbearable, I suspect that even a very religious person’s thought processes will often mirror those of agnostics or atheists. If we try to find some areas of (perhaps grudging) acceptance, these would likely be that the wish to die is accepted as rational only amongst the terminally ill, perhaps including those with non-terminal but extremely painful and persistent conditions; that any meaningful preparations meant to facilitate or hasten death should not be impulsive, prompted by a mental or emotional impairment, or by the undue influence of others; and that decision-making processes should be generally-understandable. These are the very points which are generally-addressed by the legislation proposed by Lord Falconer, by the policies of the Dignitas clinic in Switzerland, where Sir Edward Downes and his wife ended their lives together this week, and by laws in force in the American state of Oregon. It’s worth looking more at each of these in turn.

Lord Falconer’s amendment would have required examinations and certifications by two doctors that a patient is terminally ill and recommended a declaration of intent by the patient before another witness. Implicit in these safeguards is the understanding that the process would take some time, thereby preventing impulsive or capricious actions. At the Swiss Dignitas clinic, established policies address these same concerns. Steven Hodson noted that, “It’s not an easy process to go through so it’s not like you wake up one day and phone up Dignitas to make an appointment to die with some dignity.” The Guardian Online website found that of the 800 Britons who had contacted Dignitas, just thirty-four had received a preliminary approval to end their lives there and of those, few had made further arrangements:

The 34 Britons given what Dignitas calls a “provisional green light” to die have provided documentary evidence of their condition and been interviewed by both a doctor and Ludwig Minelli, the founder of Dignitas, and satisfied them that they are mentally fit to make such a decision.

One of the 34 is due to undertake an accompanied suicide very soon. Four have already secured fixed dates for their deaths, but adjourned them. The remaining 29 have not yet arranged a specific date.

A further four British people failed to get Dignitas’s permission after the Swiss doctor who examines all applicants said they should not be helped, either because they did not have an incurable illness or were judged not of sound enough mind to reach such a decision.

This is clearly not a “numbers” business or one without careful procedures in place. It does not accept the healthy but depressed; it does not accept those who are evidently pressured into their “choice” by greedy relatives; it does not accept those who had a few frequent flyer miles and have made a spur-of-the-moment decision to end their lives in lovely Switzerland, amidst fine chocolates and cuckoo clocks.

In the United States, the State of Oregon has gone further than any other to legalize assisted suicide. In 1994, the voters of the state proposed and passed a ballot measure to establish the Oregon Death With Dignity Act. In the interests of full disclosure, I should note that worked to promote the measure during my first and second years in law school in Salem, Oregon, the state’s capital. The measure passed by a narrow majority in 1994, but in 1997, when the state’s legislature proposed a ballot measure to repeal the law, that measure was defeated by a much wider margin.

The safeguards and limitations of the law are considerable: to prevent Oregon from becoming a “suicide tourist” destination, the availability of physician-assisted suicide is limited to adult Oregon residents; a requesting resident must be diagnosed with a terminal illness that is expected to take his or her life naturally within six months; the request for a life-ending dosage of medications must be made in writing and witnessed by at least two people; while one witness may be a relative, at least one witness to the request must be unrelated to the patient, may not be entitled to receive any proceeds of the patient’s estate under his or her will, and may not be the patient’s physician or an employee of any medical facility which has treated the patient; another physician must then review the patient’s records and confirm the treating physician’s diagnosis of a terminal condition; even after this second review, a patient must then wait more than two weeks and make a second (confirmatory) request for a lethal dosage of medication; during this lengthy process, the patient may rescind his or her request at any time and if at any point either the treating or reviewing physician suspects that depression or another mental impairment or undue influence by another person has prompted the patient to make or continue his or her request, the patient is compelled to undergo a thorough psychological evaluation.

Two Attorneys General under the Bush Administration challenged the application of the Oregon law. Specifically at issue was the liability of physicians for prescribing lethal dosages of controlled medications pursuant to the state procedures. Attorney General John Ashcroft issued what was known as the “Ashcroft Directive”, which declared that such a prescription served no “legitimate medical purpose” as required by the applicable controlled substances acts. Essentially, this directive jeopardized the ability of any physician participating in the Oregon Death With Dignity processes to continue practicing medicine. When Attorney General Alberto Gonzales replaced Ashcroft, he continued to defend the Ashcroft Directive. The Directive was challenged by the State of Oregon and was invalidated at the trial and appellate levels. In 2005, the Supreme Court heard arguments and, reporting on those arguments, Lyle Denniston noted that the Court seemed closely divided. The Court’s 2006 decision in Gonzales v. Oregon surprised many who expected that Federal authority would be affirmed in that case as it had been in many others. Instead, in a 6-3 majority opinion written by Justice Anthony Kennedy, the Court found that the states’ traditional “police powers” to regulate the medical profession within their boundaries could not be overridden by an administrative dictate like the Ashcroft Directive and that the general authority granted to the Federal government to regulate drugs and enforce drug policies could not be interpreted so broadly as to allow an Attorney General to bar the dispensation of controlled substances for a particular purpose where, as here, a state’s laws specifically permitted it. In his comments announcing his opinion, Justice Kennedy noted the federal law’s limited purpose, the states’ extensive role in regulating medical practices, and the Oregon law’s particular safeguards against abuse. He noted that:

Although the dispute in this case is, in part, a product of the nation’s political and moral debate on assisted suicide, the central question is whether the interpretive rule is authorized by the [Controlled Substances Act]…. The statute and our case law amply support the conclusion that Congress sought to regulate medical practice insofar as it bars doctors from using their prescription-writing powers as a means of drug dealing and trafficking as traditionally understood. The CSA, however, manifests no intend to regulate medical practice generally…. Our federal structure of government gives the States great latitude to legislate to protect the lives and health of their citizens…. The Oregon regime discussed above is an example of the very State regulation the CSA presupposes.

With its opinion, the Court emphasized that it was not endorsing the Oregon Death With Dignity Act’s objectives, but merely recognizing its authority to do so or, more properly, the Federal government’s lack of authority to stop it from doing so in this manner. The statute at issue, the Controlled Substances Act, did not address the matter particularly, but another law which did specifically prohibit assisted suicide would likely be upheld.

In an earlier case, Washington v. Glucksberg, the Court had determined that the “Due Process Clause” of the Fourteenth Amendment to the Constitution did not establish a fundamental liberty interest in assisted suicide. The Court found that Oregon’s neighboring state, Washington, could therefore ban assisted suicide to further compelling state interests, including preserving life, protecting the mentally ill and disabled, and maintaining the integrity of the medical profession. In announcing the Court’s unanimous opinion, then-Chief Justice William Rehnquist framed the issue as “not the broad question of whether there is a constitutional right to determine the time and manner of one’s death but instead whether the liberty protected by the Due Process Clause includes a right to commit physician-assisted suicide.” Chief Justice Rehnquist noted the traditional prohibitions in Anglo-American law against suicide and assisting suicide, continuing, “It is true that attitudes towards suicide itself have changed over the years, but it is still regarded as a grave public wrong.” He concluded by speculating about the possible effects of those changing attitudes, suggesting that Washington’s laws (and others’ similar laws) were “preventing a Netherlands style slide to voluntary and perhaps even involuntary euthanasia.”

In his remarks, Rehnquist noted that “almost every state” shared Washington’s stance on the issue; Oregon, of course, did not, and in her concurring opinion, Justice Sandra Day O’Connor alluded to the significance of that divergence:

Every one of us at some point may be affected by our own or a family member’s terminal illness. There is no reason to think the democratic process will not strike the proper balance between the interests of terminally ill, mentally competent individuals who would seek to end their suffering and the State’s interests in protecting those who might seek to end life mistakenly or under pressure. As the Court recognizes, States are presently undertaking extensive and serious evaluation of physician assisted suicide and other related issues.

The effect of the Glucksberg and Gonzales v. Oregon decisions is that while individuals have no Constitutional right to assisted suicide, neither are they prohibited from it if their state chooses to “strike the proper balance” as Oregon has. In this sense, Justice Louis Brandeis’ oft-cited characterization of the individual states as “laboratories of democracy”, where new and different approaches to challenging issues may be tried, seems particularly germane. In America, it will likely be at the state level where the changing attitudes noted by Justice Rehnquist will overcome the weight of Anglo-American legal history and the cultural remnants of once-shared religious beliefs.

It seems to me that much of the thinking on this issue is intrinsic in the human condition; it’s acceptance of the last step — the suicide itself — where the sides diverge. I don’t mean to make light of that difference; it’s certainly a substantial one to overcome. Notwithstanding, as diverse societies, the authority of the state to adopt or continue to enforce a majority’s religious values as law must be carefully limited. While the clearest prohibitions against voluntary death are based in various religious scriptures and doctrines, unless a non-religious justification can be plausibly found, such prohibitions seem unsustainable as law. We all hope for “good” deaths. For some, this means a struggle to live life for as long as the bleeding edge (another poor choice of words?) of medical science will permit. For others, this means a natural death in keeping with closely-held religious beliefs. For others, this means that when terminal illness is diagnosed, a slightly earlier end seems a fair trade for some measure of physical and emotional comfort. I’m sure that there are still others who chafe at any restrictions on their abilities to control their own lives and, by extension, their deaths; these few might suggest that one should be able to kill oneself and have medical assistance to do so at any time, regardless of health, depressed mental condition, or greedy relatives’ urgings.

In attempting to find some common ground on this issue, though, I think that accepting that “rational death” is possible where lucid people make considered, uncoerced decisions to end their lives on their own terms where long-term or terminal illness or very old age has brought the natural end of their lives into the short-term future. That’s certainly a step beyond where society probably sees its “shared” views currently, but I think that that posiion will continue to become more mainstream, particularly as the Baby Boom generation reaches an older age and begins to regularly confront their own deaths and those of their close contemporaries. Efforts like Lord Falconer’s will not be isolated ones in coming years; laws like those in the State of Oregon will become more common as the law, always a laggard to changing societal norms, comes to appreciate the distance we’ve progressed in our thinking on end-of-life issues.

If you click here you can see a bit about our background and what else we do.  You are most welcome to join in by using the comments section at the foot of each blog post.

Mike SP

Colin responded:

Colin Samuels: A view on Madoff
Infamy or Praise

It might be best to start this response with a few numbers. Convicted Ponzi schemer Bernard Madoff is a spry seventy-one years young. He has just been sentenced to 150 years in a federal prison. Although our federal prisons do not offer parole as such, Señor Swindle is eligible for a sentence reduction of fifteen percent if he behaves himself. Essentially, if he doesn’t riot, shiv anyone, or mix colors and whites in the prison laundry, he’ll save himself twenty-three years in the funhouse. Thus, if he’s patient, he’ll be a free man sometime around his 198th birthday.

Will he make it out in time to celebrate his bicentennial? According to the CIA’s World Factbook, the average life expectancy for an adult American man is approximately 75.65 years. Many pessimists have seized on this tidbit of information and concluded that Madoff’s sentence means that he will never live to be released from prison. It’s not like the CIA has ever been wrong about anything before, right? It should be noted, however, that these life expectancy statistics are for an average man and, as Judge Denny Chin noted in his sentencing remarks, Madoff is an extraordinary person. Let’s dig a bit deeper and consider survival probability statistics as well. According to these numbers, it seems that as an American man aged seventy-one years, Madoff has a 46.7% chance of seeing his eightieth birthday and a 16.0% chance of making it to ninety. Most importantly, though, he has a 1.5% chance of living beyond 100 years old. Scoff if you will, but I think a 1.5% chance of making it to one’s 198th birthday is nothing to sneeze at.

Assuming for purposes of our discussion that Judge Chin does not share my optimistic nature and expects that Madoff will not survive his sentence, what might have prompted his decision? 150 years was the maximum sentence for the counts to which Madoff pleaded guilty, but as federal sentencing expert Alan Ellis commented, “150 was the statutory maximum. It’s the kind of sentence the media puts into its stories because it sounds good… but rarely get handed down.” The U.S. Probation and Pretrial Services System considered the admitted facts and mitigating factors in Madoff’s case and recommended a sentence of fifty years. Such a sentence wouldn’t have seemed out-of-step with other high-profile white collar crimes in recent years. Worldcom’s Bernard Ebbers received twenty-five years; Enron’s Jeff Skilling received twenty-four years; Adelphia’s John Rigas was sentenced to twelve years. Thus, although Madoff’s sentence was apparently calculated in accordance with the sentencing guidelines, albeit with consecutive rather than concurrent sentences imposed, Judge Chin’s decision seems like a departure from general norms.

In his sentencing remarks, he described Madoff’s crime as “unprecedented”, “staggering”, and “extraordinarily evil”, a phrase which was widely-quoted and commented-upon. Even viewed as an unprecedented, staggering, and extraordinarily evil crime, however, was the sentence a proper one? As is often the case in legal matters, the answer is “it depends.” What will likely be dispositive of the issue on appeal is whether the sentence was calculated within the sentencing guidelines. Owing to a 2005 Supreme Court ruling, the sentencing guidelines are advisory for, but not binding upon, federal judges. If his sentence were supported by the facts of the case and not otherwise prohibited by other applicable laws, Judge Chin had some latitude in crafting a sentence outside these guidelines. Notwithstanding, perhaps to strengthen the ruling’s chances on appeal, Chin seems to have taken some care in adhering to the guidelines, at least as he interpreted them. Although I’ve seen little discussion of this, a report in The Wall Street Journal noted, “Interestingly, Judge Chin said that the pre-sentence report for Madoff, completed by the U.S. Probation and Pretrial Services System, erred when it said that the maximum prison sentence under the federal sentencing guidelines was life imprisonment. He said no count to which Mr. Madoff pleaded guilty carried a maximum sentence of life imprisonment. Thus, the maximum guidelines sentence could be determined by adding up the maximum penalties for all counts, or 150 years.” If Madoff appeals this issue, a determination that the judge’s interpretation was correct would likely end the matter; even if his sentence is determined to depart from the guidelines, it might still be upheld. Title 18 of the United States Code describes in section 3553(a) the factors a court must consider in imposing sentences: “The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection.” (Emphasis added.) That paragraph describes four objectives; very broadly, these are to punish criminal conduct, to deter others from committing similar crimes, to prevent recidivism, and to rehabilitate:

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

Most would agree that a life sentence (twenty to thirty years or so, for those who didn’t buy into my extraordinary Madoff lifespan arguments above) would accomplish the punishment, recidivism, and (to the extent an old dog can learn new tricks) rehabilitation objectives as well as a sentence of 150 years likely will. As such, on these points at least, one would be hard-pressed to explain why the extra century or so is “not greater than necessary”. One might argue that a life sentence doesn’t adequately “reflect the seriousness” of this unprecedented crime or that a term of around twice a human lifetime for a man who’s already into his seventies is “just punishment”, but I think there are stronger arguments to make in defense of Judge Chin’s decision. I think that the sentence is justifiable if it affords a superior deterrent for future Madoffs than would a single life sentence.

That focus on deterrence has been noted by many observers. Judge Chin emphasized the scale and nature of Madoff’s crimes: “Here the message must be sent that Mr. Madoff’s crimes were extraordinarily evil.” Others have inferred a clear message of another sort, one directed at others who would commit similar crimes. Professor Douglas Berman wrote that:

[T]hough the choice of this magic sentencing number of 150 years — as opposed to 30 years or 50 years or 100 years — really means very little to Bernie Madoff, it could end up meaning a lot to the government and to some future defendants as a new white-collar sentencing benchmark. Before Madoff, defendants like Ebbers and Jeff Skilling and others prominent white-collar defendants who were sentenced to around 25 years often served as the functional benchmark for sentencing debates for corporate fraudsters. In more than a few prominent white-collar cases, both the feds and defense attorneys would often compare and contrast the defendant to be sentenced to Ebbers and Skilling and the sentences they were given. Now, the most prominent benchmark will be Madoff and the number 150.

Defense attorney Scott Greenfield questioned whether the severity of the sentence diminishes some of its perceived deterrent effect: “Will this really serve as a deterrence, going as far over the top as it did?” He further suggested that it would ultimately be counterproductive in prosecuting those criminals who remain undeterred:

To the extent that there is any lesson to be learned from the Madoff case, it’s all negative. If someone’s about to rat you out for scamming a few billion, you might as well murder them since they can’t give you life plus cancer. And if you get caught, you might as well fight with everything you’ve got, as hard as you can, no matter what, as you won’t get the slightest consideration for doing the right thing. And while the going is good, hide as much cash as you can where the government won’t find it so you can afford a lawyer with a better strategy than [Madoff attorney Ira] Sorkin.

Defense attorney Christopher Clark shared Greenfield’s assessment, concluding, “Nobody in Madoff’s position is ever going to plead guilty again. What benefit did this guy get for pleading guilty?” I’m troubled by the prospect that by making the consequences of conviction more extreme and deterring an untold number of frauds, we’re also increasing the likelihood that some of those who are not deterred will fight their prosecutions all the more and perhaps in some cases prevail. Trade-offs and unintended consequences abound in the law generally and in criminal law particularly. I suspect that both prosecutors and defense counsel soon will adjust to the new reality established in the Madoff case. Plea bargaining will continue as before, but with prosecutors wielding a somewhat bigger stick in negotiations. Defense attorneys whose clients do not plead guilty will, eventually, be able to argue for proportionally-lower sentences where their clients’ crimes do not rise to the level of Madoff’s infamy. On this latter point, I disagree with those who have suggested that Madoff’s sentence has destroyed the concept of proportionality in sentencing. I think that this sentence has thrown things into chaos temporarily and it will certainly set a higher sentencing benchmark for white collar defendants (both of which should probably worry Sir Allen Stanford right about now), but the system will adjust.

Proportionality will again prevail, with Madoff rather than Ebbers and Skilling at the top of the index, unless and until someone else commits a crime which is “extraordinarily evil” even in comparison to Madoff’s. After all, the justice system managed to right itself after Sholam Weiss, Keith Pound, and Norman Schmidt were sentenced (Weiss and Pound in 2000; Schmidt in 2008). Who are Weiss, Pound, and Schmidt you ask? The three are convicted white collar felons, each of whom was sentenced to prison terms well in excess of Madoff’s. Weiss and Schmidt are currently serving their respective 845-year and 330-year sentences; Pound didn’t quite make it to the CIA’s average life expectancy and thus failed to complete his 740-year sentence. For those who think that guilty pleas will become a thing of the past, Stanford Financial Group’s CFO, James Davis, disagrees. The day after Madoff was sentenced, he agreed to plead guilty for his part in Stanford’s alleged Ponzi scheme and “will continue to cooperate with the investigation and ‘assist the prosecution’s attempts to find the billions that Stanford sent to Switzerland and other banks in Europe.’”

Although much of the discussion has been about the length of Madoff’s sentence or its proportionality to those handed down to Ebbers, Skilling, Rigas, et al., I think that Judge Chin’s conspicuous use of victim statements during the sentencing will also have a lasting effect. Professor Paul Radvany observed that, “By giving this sentence (the judge) tried to send a clear message to victims he heard their pleas for justice.” Those pleas were particularly loud in this case (in a letter to the judge, Sorkin, Madoff’s attorney alluded to “mob vengeance”), but I think that going forward the victims of egregious financial crimes will be better heard and will have a greater impact on sentencing. Some of the victim statements at Madoff’s sentencing sought the proverbial pound of flesh; Madoff was called a “monster” and a “low life”. “May God spare you no mercy,” said one victim; “I hope his sentence is long enough so that his jail cell will become his coffin,” said another. In addition to hearing several statements in court, the judge noted that he had received more than 100 letters from victims, including an elderly widow who had been personally reassured by Madoff that her “money is safe with me.” Jayne Bernard wrote that, “Judge Chin rejected defense arguments that a 150-year sentence could only be justified by some sense of ‘mob vengeance.’ Rather, he said, ‘symbolism is important’ It is important for purposes of retribution, deterrence, and also to recognize the suffering of victims. ‘The fraud here was staggering.’” Madoff’s fraud is atypical in some ways, but it is not fundamentally unique; there will likely be other financial crimes where victim statements could inform a judge’s sentencing decision. Following the Madoff sentencing, Professor John Coffee was interviewed by The Wall Street Journal:

In the Madoff case, listening to such appeals was probably justified, one experts [sic] says. “I would think in general, fairly little weight should be given to claims of victims,” says John Coffee, a law professor at Columbia University who specializes in white-collar crime. “In the Enron and WorldCom scandals, there were very dispersed losses visited upon shareholders,” many of whom were institutional or diversified investors. However, in the Madoff case, taking victims’ stories into account “makes much more sense. This is the unique case where extraordinary losses were visited upon identifiable people who each suffered life-changing losses,” Coffee said. Also, he says, unlike many other crimes, the victims’ pain was “foreseeable to the defendant, who knew that their life savings were sooner or later going to be lost.”

While high-profile financial crimes have certainly been prosecuted before and the current worldwide economic crisis has raised public consciousness of these issues, Madoff’s crimes, perpetrated against many middle-class savers and pensioners with whom we are able to identify, has brought these concerns into sharper focus for many of us. A public reassessment of the relative harms caused by financial crimes is underway. When it comes to crimes against individuals, the armed robbery will always be treated more harshly than the con or fraud. However severe violent crime can be for individual victims, though, violence is inherently personal or local and the effects of such crimes is terrible in degree but limited in scope. Financial crimes like those perpetrated by Madoff and other white collar criminals is certainly less severe than violent crime, but because these are widespread, even global, thousands of small injuries creates a tremendous cumulative harm and the most notable crimes can create incredible economic disruptions. Yes, violent crimes are more harmful than non-violent financial crimes, but the latter are not without harm; the public’s concept of “justice” demands that severe financial crimes be treated severely. “Jake”, a commenter at The Conglomerate, a legal blog, wrote:

In a society in which financial security is paramount (whether that should be so is beside the immediate point), robbing other people of their financial security is extraordinarily evil. The 150-year sentence is symbolic, nothing more, given Madoff’s age. And it is a worthy symbol.

In reply, Jayne Barnard agreed:

So, if I punch an old man in the face, I am evil. But if I steal an old man’s money and make him sick with worry about how he will pay the rent and buy food and agonize about whether his grandchildren will still love him if he can’t pay their tuition, that’s not so bad? The loss of money is not just about the money — it’s also the about the loss of trust in others, loss of hope and, often, loss of companionship. Not because their friends leave the victims but because the victims leave their friends, often in shame. Someone who knowingly exposes his victims to this kind of damage is every bit as bad as a mugger.

If the only meaningful change which comes from this increased awareness and appreciation of the effects of financial crime is that outraged victims will harangue judges into meting-out longer and longer sentences for every garden-variety fraud, I for one will be disappointed. It’s a possibility, certainly. As Alan Ellis, quoted above, noted, “A judge never wants to get written up in the papers as being lenient. Merciful, maybe, but not lenient.” I’d like to see enhanced penalties for financial crimes and increased parity in sentencing between small-scale violent crimes and large-scale property crimes. Perhaps prosecutors will take to heart the public’s concerns and when plea bargaining with white collar financial criminals, will focus on trading sentence reductions for meaningful loss recovery for victims as often as they trade for trial avoidance or cooperation with ongoing investigations. Former Securities and Exchange Commission enforcement counsel Bruce Carton suggested an approach which I think is worth exploring:

Madoff’s fraud has reportedly caused a loss of over $13 billion, only $1 billion of which has been recovered. Let’s see: $12 billion in outstanding losses and a 150 year sentence. How about we give him a decade off for every $916 million he helps prosecutors recover. If they recovered the full $12 billion, that would take roughly 131 years off of his sentence, leaving him with 19 to serve. He’d walk out of prison a 90-year-old man. Change the math to make it a 100-year-old-man if you prefer, but you get the idea.

One can hope, at least.

With that, I’ll conclude my blathering and return to shooting Indians from the back of a covered wagon or calling the feather in my cap “macaroni” or whatever it is that you lot think we Americans do when you’re not paying attention.

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RESPONSE
By Mike SP

7th July 2009

There are many sentencing theory and other  issues raised here and I would state at once that while I am interested in criminal law I have no expertise in the subject and nor, obviously, did I teach it.

1. Madoff pleaded guilty, saving the state a great deal of cost and effort and, just as important, obviated the need for victims to give evidence and, thereby, adding to their loss and burden.  No account appears to have been given for the plea – perhaps a minor technical point in this case?

2.  Interestingly none of the victims, nor anyone else, stepped forward to give a character reference  – of some, but limited,  value in  other cases in mitigation.  This is hardly surprising in this case.

3.  Clearly, the state, through the judiciary, is sending out a firm message that corporate fraudsters will get little mercy.  Madoff’s crimes caused serious financial hardship.  Although many of his victims were rich, attracting little sympathy from some sections of the public, others have suffered very real hardship and their savings have been stripped from them.

4.  The key question and one yet to be answered is – how did Madoff manage  to go undetected for so long?  Why was the regulatory regime so lax as to allow such a massive fraud to go undetected?  We have the same regulatory  issues here in the UK – and questions here are being asked about how our banks behaved on sub-prime and other high risk investment strategies.

5.  We are seeing some evidence that the banking world is returning to old ways, that lessons have not been learned,  and that there may be a return to business as usual when the dust has settled and the economy improves.  Of course the press will move on, as will the bloggers and other commentators,  but will the new regulatory regime be robust enough to detect fraud and will even a 150 year sentence be sufficient.

It seems to my untutored eye that a sentence of 30 or 150 years to an experienced businessman or woman is much the same – prison is a calculated risk for serious fraudsters.  Will what is in effect no more of a whole life sentence than 30 years in your system for a 40-55 year old fraudster be any more of a deterrent?   I understand that your prisons do not have a formal parole system – but there is time off for good behaviour.

I also understand that your prisons are rather more severe places for residents than ours are reputed to be.  It is unlikely that Madoff will ever be free of the fear of retribution from within the prison population and, therefore, it may be that he will need to be in a maximum security facility?

Detection, to my eye, is going to be more important in the long term than deterrence.  It was ever thus, they say, with armed robbery in the old days in Britain – and Ponzi and other serious frauds are but the modern equivalent of robbery.  Retribution is a major factor also in this case – rather similar to revenge in our own Ronnie Biggs Great Train Robbery case.  Our Lord Chancellor and Secretary of State for Justice, Jack Straw, has just turned down Ronnie Bigg’s parole application.  Biggs is 85, seriously ill, and is unlikely to pose a threat to the population if set free.  It is likely he will die in prison.  Biggs, however, has some support from members of the public in the Uk for release and some, myself included, feel that Straw has made the wrong decision on parole here.

5.  I can’t quite see you on the back of a wagon firing a gun – but do let me know if you take this pastime up!

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RESPONSE
Colin Samuels

9th July

As Madoff was given the maximum possible sentence under the sentencing guidelines, it can be stated as a fact that he received no credit for his decision to plead guilty. As you point out, at the very least he saved the not insignificant cost of his trial. Moreover, although the evidence against him was, by most accounts, pretty damning, the burden of proof remained on the prosecution and Madoff relieved them of that burden with his plea. I wouldn’t say that this is a minor technical point, however; understanding why he received no time off his sentence will be critical for defense attorneys, if one assumes that other federal judges will follow Judge Chin’s lead and approach sentencing in other major fraud cases consistently (something they are not obliged to do). It may be that the amounts lost in Madoff’s scheme, the length of time he deceived his investors, and the other circumstances of his case have resulted in an aberrant sentence. Perhaps in time we will come to see it as an outlier rather than a new standard-setter, but I’d bet not.

In my earlier comments, I had touched on one point of disagreement between Judge Chin and the pre-sentence report prepared by the U.S. Probation and Pretrial Services System. Chin had indicated that no count for which Madoff had entered a guilty plea carried a life sentence and that the cumulative total of guidelines sentences was 150 years (the sentence he imposed). Although this discrepancy might have provided something for Madoff to argue on appeal, it’s a moot point now. This morning, Madoff’s attorney, Ira Sorkin, has advised various media outlets, without further comment, that Madoff will not appeal his sentence. That decision is a somewhat unsurprising one, as Chin’s decision was at the extreme end of the sentencing guidelines but not in excess of them. The judge briefly remarked on that during some prepared remarks before a U.S. Sentencing Commission conference this morning:

In the days since, the sentence has been dissected and debated, both in the popular press and the academic media. The discussion has been healthy: What are the goals of punishment? Did the sentence further those goals? Should helping victims heal be a goal of punishment? Is a financial crime such as securities fraud really “evil?” Is there any point to a sentence of years far longer than a defendant is expected to live? Is such a sentence merely pandering to the public? We are here today, of course, not to take on these questions, but to discuss the Sentencing Guidelines. But the Madoff case underscores how difficult sentencing can be.

With his guilt established by his own plea, his sentence within guidelines, and even a relatively short sentence unlikely to see him released from prison during his lifetime, a Madoff appeal might have resolved some of our arguments concerning the propriety of his sentence, but probably would have done him no real good.

I’ve had some concerns about the unintended side effects of giving Madoff the maximum sentence despite his guilty plea. While a maximum sentence will deter less committed fraudsters, there will undoubtedly be others who are not deterred. Madoff’s sentence is counterproductive to the extent that it causes some of them to commit more and more egregious crimes (figuring, as criminal defense attorney Scott Greenfield so memorably put it, “they can’t give you life plus cancer”) or makes convictions much more costly or uncertain if they no longer have any incentive to plead guilty. I’ve expressed some confidence that the system will adjust as it has in the past, but the fact is that I’m just guessing as much as everyone else.

In this case, Judge Chin gave the prosecution the sentence it asked for; if they had asked for a lesser sentence, might Madoff have received it? It’s been a mystery to pretty much everyone outside the Madoff inner circle why he entered the guilty plea without some sort of deal in place concerning sentencing recommendations or reductions in the counts charged. Perhaps he guessed that even without a prosecution recommendation, the judge would look favorably on the plea or would be receptive to the assertions made by Madoff’s counsel that he had cooperated with investigators since his arrest. If so, he gambled and lost. I suspect that other defendants will not make the same choice, but will instead try to guarantee some reward for any guilty plea, though prosecutors may be emboldened by this sentence not to give up too much in such negotiations. Perhaps it’s been overstated in the press accounts or has been misperceived by the public, but there are many who see much plea bargaining as largely akin to a scoundrel’s insincere “deathbed confession”. After committing a number of crimes and causing untold misery, defendants “cooperate with investigators” and agree to plead out, thereby saving prosecutors a few sleepless nights; in exchange, they get substantial amounts of time taken from the established sentences for their crimes. I for one hope that one effect of the Madoff sentence will be to require more substantial cooperation and recovery for victims before any meaningful sentence reduction is offered.

We should know more about the “Madoff effect” in the coming weeks and months, as fraud defendants Marc Dreier and Allen Stanford are sentenced and tried respectively. Dreier’s attorneys have requested a 12½-year sentence, prompting former SEC enforcement counsel Bruce Carton to caution, “Be careful asking for 12 Years… the last guy who did that got 150 years.” Prosecutors in the Dreir case have requested a 145-year sentence. Scott Greenfield commented that Dreier will now be sentenced on the “Bernie Scale”:

Clearly, the stage is set. As the dollars get bigger, the sentences get longer, until we’ve reached the point of absurdity. Welcome to absurdity.

It’s not like the government lacks any sense of proportionality. After all, they took 5 years off of Bernie’s sentence to reflect the fact that Dreier only stole $400 million rather than $12 billion, ignoring that the former is a minute fraction of the latter. The problem, it would appear, isn’t that the sentence urged by the government for Dreier is too high, but that the Bernie Bar is still set too low.

There is no doubt that Marc Dreier is going to get slammed by Judge Rakoff at sentence, and Shargel as much as concedes this point up front. Then again, it would be offensive and foolish for him to do otherwise. But how much of a slamming does a financial crime, even a huge one, deserve for the legitimate purpose of sentence? It’s impossible to say anymore, after the 150 years given Madoff on an open plea. Nothing makes sense. The incentive structures mean nothing anymore. The distinction between violent and white collar crime is gone. The notion that there is some benefit to not doing ever greater harm has been lost.

It seems safe to suggest that Sir Allen and his attorneys will be very interested to learn Mr. Dreier’s fate next Monday.

Finally, regarding Madoff’s prison selection, you’re correct that the choices are not good ones from his perspective. His will not be a “country club prison” or “Club Fed” existence like that experienced by some earlier white collar criminals. Instead, under established policies, the length of his sentence alone would guarantee Madoff a sojourn in a maximum-security facility. Further, owing to his notoriety, he might be seen as a likely target for prison violence. Federal sentencing expert Alan Ellis speculated that that risk might prompt prison officials to recommend that he be kept in a Special Housing Unit (“SHU”), in isolation from other prisoners at least for the foreseeable short-term. Others have suggested that to secure him properly, he might be assigned to the U.S. Penitentiary Administrative Maximum Facility (ADX) “Supermax” prison. That facility, which is essentially an all-SHU facility, is where the most dangerous and tightly-controlled federal prisoners are held (current inmates include such convicted domestic and international terrorists as “Unabomber” Theodore Kaczynski, 9/11 conspirator Zacarias Moussaoui, Oklahoma City bombing conspirator Terry Nichols, and Olympic Park bomber Eric Rudolph).