Constitutional Dignity and the Criminal Law

Author:Judge James E. Baker


November 21, 2002



Address Before the Twenty-Sixth Criminal Law

New Developments Course

  1. Introduction

    Thank you for inviting me to the JAG school today to share with you some thoughts on the criminal law. I appreciate the opportunity you have given me to look at the larger canvas. This is the first time I have done so regarding the criminal law since joining the court.

    I also appreciate that I am given this opportunity at a first-class school. When I was at the State Department and at the National Security Council, I came to have great confidence in the JAG school's output-its students, its teachers, and its publications. You do not just teach doctrine here; you encourage students to step outside their experience, their service, and their culture to test theories and look over the horizon. That is what lawyers are supposed to do; and that is one of the missions of a great school.

    But be careful what you ask for. I was told I could speak about "anything," and anything is what you are getting. The title of my presentation is "Constitutional Dignity and the Criminal Law." I will start with a few

    comments about the importance of the criminal law to national life in real terms and in how Americans perceive the law.

    Lawyers like us can never forget that we are part of something bigger than we are and that every act counts in an incremental way. An encounter with the criminal law from any perspective might be the most important event in someone's life, or forever shape how someone perceives the law and those who profess it. As a result, how we conduct ourselves can be as important as the results we reach. This is as true for you as it is for me.

    My point of reference is the Court, and therefore, I have chosen to spend the majority of my time considering the way in which courts operate, or perhaps should operate, in upholding the criminal law and its constitutional foundation. The credibility and viability of a court stems in part from the public's perception that it is indeed honorable, impartial, and just. Therefore, it matters not only what courts say, but also how they say it. Some call this judicial dynamic collegiality, but I think "constitutional dignity" is a more appropriate descriptor for a process that is integral to the constitutional framework. If credibility is the capital of courts, constitutional dignity is interest accrued.

    My comments are necessarily incomplete. I say that for three reasons. First, when I was appointed to the court, a distinguished judge I knew kindly told me that it had taken her three years before she fully appreciated appellate judicial practice; judges must learn as well as teach. This means that I come here today as a student of judicial practice and not its master.

    Second, much of our popular understanding of how courts operate is based on observation of the Supreme Court. That is certainly how judicial practice was taught at my law school. Such an approach is inherently inductive. Conclusions drawn from the Supreme Court, with its relatively stable membership of nine, may not apply to the lower courts with fluid composition.

    Finally, my own observations are inherently inductive, drawing as they do on my practical experience on but one Article I court of limited jurisdiction. With that in mind, I have left plenty of time for questions and discussion, as I really hope to gather your views, as much as to tell you mine.

    1. Criminal Law

      Let me start with a seemingly obvious comment-criminal law is foundational law in America. Along with property law and the structural fundamentals of the Constitution, I cannot think of an area of law that has more impact on how our society is ordered. (By criminal law I mean not just the law in an elements sense, but the criminal continuum from crime to confinement.)

      Now this observation should not strike anyone as particularly insightful. You may wish to get your money back. But in the context of military justice, where criminal law is statutorily conceived as part of the disciplinary process-a commander's supporting arm-it may be useful to step back and consider just how important criminal law is to our society and our way of life. It is part of our social fabric, which is demonstrated alone by the shear number of persons directly affected.

      Let me give some examples, which I present solely for illustrative purposes:

      * In 2001 there were 5.7 million violent victimizations,2including 248,000 rapes and sexual assaults in the United States.3

      * A 1999 NIH study concluded that for the years 1983-1991 homicide was the leading cause of death by injury in children under one.4

      * Nationwide the criminal justice system employs the same number of people as the automotive industry.5

      * There are over 15,000 names of law enforcement officers killed in the line of duty on a memorial across the street from our court, including forty-three military policemen.

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      * At year end in 2001, 1.4 million persons were incarcerated in America and another 6.6 million persons were on probation,

      3.1% of all U.S. adult residents.

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      * In 2001, more black men were incarcerated than attended college.8 Some studies estimate that anywhere from twenty to thirty percent of black males between the ages of twenty and twenty-nine have served, or are serving, time for felony convictions.9

      In short, criminal law directly impacts millions of Americans. For victim and accused, contact with the criminal law may be the most consequential experience of a lifetime.

      1. Impact on Lives

        There is also a less empirical and more visceral truth about the impact of criminal law. For juror, witness, spectator, participant, observer, as well as victim and accused, exposure to criminal law profoundly influences how they perceive the law generally, their place in society, and the law's ability to provide order and equity to society at large. The criminal law affects where we let our children play and where we feel comfortable walking.

        We cannot forget this when we practice our profession. Every act counts. Every word matters. These acts and words collectively shape America's perception of the law as the most fundamental of our institutions that hold democratic society together.

      2. Insight into Society

        Americans are fascinated by the criminal law. During prime time there are two crime shows on network television every night. Television reflects our tastes, and some suggest, contributes to those tastes by fostering the very violence depicted.

        For sure, as Stanford University law professor Lawrence Friedman has pointed out, there is an element of prurient interest to this fascination.10

        The criminal law allows us a look at the lives of the rich and famous, and perhaps, in the fall from fame or wealth of a Claus von Bulow or an O.J. Simpson, we may gain confidence that happiness is not found in wealth or fame alone, if at all. Lizzy Borden and Charles Manson remain a revolting part of America's culture, and not because of the legal importance of their trials.

        But as you all well know, and as I first learned when I studied the police blotter at Marine Corps Base, Camp Lejeune, North Carolina, criminal law is more mundane, relentless, and tragic than all that. It is not specific to a particular socio-econmic class or profile. It is more plea bargain (ninety-five to ninety-six percent)11 than Perry Mason. It is human frailty and failure, and everyday lives broken. The importance of criminal law is not found in its hold on popular imagination, but on its window into the

        fragile side of society. As military historians and officers study behavior under fire, lawyers study behavior on the margin of the human condition.

      3. Constitutional Values-Liberty with Order

        But if we see what is worst in America, we also see what is best. Criminal law is important because it helps to define who we are as a constitutional democracy. There is much that distinguishes our form of government from others, but certainly much of that distinction is found in the Bill of Rights and in two simple words: due process. All of which help to affirm the value and sanctity of the individual in our society. Broadly then, criminal law helps to define who we are as a nation that values both order and liberty.

        That is what many of the greatest judicial debates are about, like those involving Holmes, Hand, Jackson, and Douglas over the application of the First Amendment to potentially criminal contexts in Debs,12 Dennis,13 and Terminiello.14 These debates reached across courts and across generations of jurists. The Alien and Sedition Acts, McCarthy's use of the contempt statutes, and seminal Supreme Court cases such as Miranda v. Arizona15

        and Gideon v. Wainwright16 involved historic applications of criminal law. But they were also about much bigger issues regarding liberty and the relationship between government and the individual in democracy. Likewise, the "Scottsboro boys" rape case, Powell v. Alabama,17 is a right to counsel case, but it is also a touchstone moment when the societal ship began its long turn from lynch law to rule of law. And that is why one-hundred percent of Americans support the war on terrorism, but there is less agreement on the whether, how, when, and where of military tribunals. This is criminal law, but it is also about constitutional values and duties.

      4. Criminal Law and National Security

        Finally, as the military tribunal debate shows, criminal law is part of national security. We all know this in the wake of September 11, but this has been the case for decades.

        (1) My first job as a lawyer was in the office of Law Enforcement and Intelligence at the State Department. Our daily bread was mutual legal assistance treaties, extradition, and rendition, all of...

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