|
 Previous
Page
Book Reviews
This Month's Featured Selections
The Politics of Law
Edited by David Kairys
(Boulder, CO: Westview Press, 1998).
Paper. 725 pgs. $16.
Reviewed by Edward S. Marion
The title says it all. Any "the politics of" book
is an attempt to expose some nominally pure endeavor as a less-wholesome
political one. To brand something as political is to debase it.
Get ready for this bombshell: The political process does not
end with the enactment of legislation; lawyers intentionally
appeal to the political and other perceived value systems of
judges, and judges intentionally decide cases based upon those
values. How shocking!
Every intellectually honest lawyer and judge knows that the
law provides: "a wide and conflicting variety of stylized
rationalizations from which courts can choose. Social and political
judgments about the substance, parties, and context of a case,
as well as about a range of institutional concerns, guide such
choices, even when they are not the explicit or conscious basis
of decision."
Of course, the public face of the legal profession is that
the law is above politics; judges are fungible, applying consecrated
objective principles to the facts. You know, "Judges don't
make the law, they just apply it." Therefore, all the public
is supposed to care about when considering whom to vote for as
judge is identifying the intelligent, honest, and hardworking
person. A judge's personal views on the issues are irrelevant.
In fact, any good lawyer tries to appeal to a judge's
personal beliefs. The skill comes in finding the rule that fits
the intended result and pushing the right buttons without being
obvious. And, our "best" judges know how to make their
personal judgments sound inevitable by citing the "correct"
authorities.
Having accepted the reality of the legal process, this book's
contributors might have been expected to bemoan the sorry reality
of the legal world and call for a return to the days - were
there such days? - of honest and pure adjudication. But
they don't. They applaud the way of the world and advocate
using the revealed legal system to further their hysterically
anachronistic left-wing agenda.
According to the authors, the only things wrong with the legal
system are Republicans and conservatives. The law exists "to
take up the cause of the rich." Law schools train "for
willing service in the hierarchies of the corporate welfare state."
The struggle is to "develop new entitlements that redistribute
income and power, and to break down the false dichotomies between
wage work and welfare" and to develop an "international
system of government."
If you want a nostalgic trip down Marxist memory lane -
assuming you're not a recent law school graduate and, therefore,
already mired in the nonsensical rhetoric of the Left -
this beast of a book is for you. If you want to learn something
useful about the law, read A Civil Action.
Edward S. Marion, U.W. 1974, is general
counsel at the Wisconsin Public Service Commission. He is a former
Dane County circuit court judge and chief of staff to Gov. Thompson.
Sentencing Digest
(Williamsburg, VA: National Center
for State Courts, 1998).
38 pgs. $5. To order, (888) 228-6272.
Reviewed by Thomas G. Wilmouth
Presumably, a criminal defense practitioner would be excited
to read this report developed by the National Association of
Sentencing Commissions (NASC), the Conference of State Court
Administrators (COSCA), and the National Center for State Courts
(NCSC), to gain insight into this most important phase of the
criminal justice system. The report is highly technical such
that it is difficult to comprehend and merely raises issues rather
than provides answers. The reader must strain through the brief
report to gain any meaningful information.
Some value, however, is found in the history of sentencing
included in the report. Sentencing in the 1960s was based upon
basic judicial discretion, in which courts imposed "indeterminate"
sentences, and the rationale was to impose a sentence that was
just for the individual defendant. The 1960s coincided with a
period of optimism about rehabilitation; treatment displaced
punishment as the official role of penal institutions. Sentencing
reforms since the 1970s, organized around the principle of "just
desserts," have sought to reduce judicial discretion. Many
state parole boards have been eliminated or have had their discretionary
release authority substantially reduced and the politically popular
mandatory minimum sentences have been enacted, together with
habitual offender and "three-strikes" provisions.
Minnesota enacted the first state sentencing guidelines system
in 1980 and several states have since followed. No state, however,
has gone the route of the U.S. Sentencing Commission and developed
a highly detailed and mechanical set of guidelines without a
clear rationale for use by the federal courts. The report asserts,
without any support for this view, that observers today are stressing
more the need for maintaining judicial discretion. The report
reminds the reader that sentencing reform has not curtailed and
has likely increased the prosecutor's general discretion.
The report contains a brief section on truth-in-sentencing,
which will be effective in Wisconsin on Dec. 31, 1999. Labeled
"the 1990s reform," it completely turns away from rehabilitation
and treatment, as the defendant actually serves an amount of
time that is closely aligned with the court's original sentence.
The report contends that this law will allow judges to creatively
circumvent statutory provisions in order to consider adequately
the full array of offender characteristics. The report also notes
that the enactment allows a state to be eligible for a share
of $8 billion in federal funding through the year 2000. The norm
of the law for most states seems to be 85 percent service of
the imposed sentence.
The report fails to discuss adequately the costs involved in
this law, other than to note that intermediate sanctions for
nonviolent offenders, which also can be built into a sentencing
guideline scheme, will make prison beds more available. The report
also fails to mention the difficulties this law will cause jail
administrators.
On the issue of sentencing disparity, the report notes that
despite the traditional goals and considerations of sentencing,
sentencing still comes down to the court's moral judgment.
Evidence of racial disparity in sentencing may reflect a failure
to rigorously consider the full range of variables, legal and
nonlegal, or the disproportionate participation in crime among
various races. Ongoing adjustment of sentencing guidelines is
suggested to decrease perceived disparity.
Prison populations have increased in all of the states studied,
but the rate of new prison commitments has been reduced in some
states and maintained in others. The report inadequately concludes
that it is unknown if sentencing guidelines have affected those
trends.
For a relatively experienced criminal law practitioner, this
report was very hard to follow and it is not recommended reading.
Thomas G. Wilmouth, Notre Dame 1987, is a partner in Brennan,
Ramirez, Wilmouth & Sesini L.L.P., Milwaukee. He practices
criminal defense in the state and federal courts of Wisconsin.
|
