A SCAPEGOAT THEORY OF BIVENS.

AuthorCrocker, Katherine Mims

INTRODUCTION 1944 I. EARLY CASES AS A RESPONSE TO SCAPEGOATING 1946 A. Bivens 1947 B. Carlson 1951 C. Davis 1953 II. LATER CASES AS AN INSTANCE OF SCAPEGOATING 1956 A. Convenience 1956 B. Concealment 1960 C. Correction 1966 CONCLUSION 1969 INTRODUCTION

On May 16, 1993, Guido Calabresi, then the dean of Yale Law School (now a senior judge on the Second Circuit), delivered a thoughtful commencement address at Quinnipiac University School of Law. (1) The theme was scapegoats.

Calabresi recounted the story of Eddie Slovik, an army private whom the United States executed by firing squad in the waning months of World War II for running away from his unit. (2) More than 21,000 members of the American military were convicted of abandoning their units during World War II. (8) But Slovik was the only one put to death for his crime. Indeed, he remains the only American subjected to capital punishment for desertion since the Civil War. (4)

Why was Slovik singled out? In Calabresi's telling: "The Army decided that it was necessary to make an example, because if this sort of thing could happen, the war could be lost," and then-General Dwight D. Eisenhower allegedly said, "pick me a loser." (5) Having narrowed the pool down to several soldiers who had left their stations twice, Calabresi continued, the Army "sent in psychologists to interview the double deserters and came up with Eddie Slovik, who came from someplace in the middle west, did not seem to have any family, had perhaps been a petty thief before going into the army," and was considered "a loser." (6) As Slovik himself reportedly put it: "They're not shooting me for deserting the United States Army--thousands of guys have done that. They're shooting me for bread I stole when I was twelve years old." (7)

Slovik, in Calabresi's version of the story, seems to have been a scapegoat. Students of the Bible may be familiar with the literal scapegoat from the Old Testament, which foreshadowed Jesus's death in the Gospels. In Leviticus, God instructed Moses that his brother Aaron, the high priest, should select a live goat and "confess over it all the wickedness and rebellion of the Israelites--all their sins--and put them on the goat's head." (8) Aaron, God said, should then "send the goat away into the wilderness," where it would "carry on itself all [the Israelites'] sins to a remote place." (9) Other cultures have apparently embraced similar rituals too. (10)

People may feel the most pity for human scapegoats that, like the animal ones of old, are innocent of the misdeeds they are made to bear. As Calabresi put it, scapegoating "can become the pogrom: racial, religious, ethnic, and put the blame on some group of innocent people." (11) From the Chosen One in Igor Stravinsky's ballet The Rite of Spring to Tessie Hutchinson in Shirley Jackson's short story "The Lottery" to Rue in Suzanne Collins's book series The Hunger- Games and so many more, innocent scapegoats have captured modern audiences' imaginations. (12) But scapegoats are not always innocent. Like Slovik (incidentally the subject of a 1974 made-for-television movie starring Martin Sheen), scapegoats may be guilty of the crime for which they are punished--but so may many others for whom the scapegoat's penalty provides symbolic exculpation. (13) To borrow again from both life and television (this time an acclaimed 2019 miniseries), consider the criminal convictions of a handful of midlevel bureaucrats for the 1986 Chernobyl nuclear meltdown, a disaster that subsequent analysis attributed to higher and broader causes within the Soviet system too. (14)

Scapegoats have appeared across the ages and in myriad manifestations. They exist in actuality and in art. Scholars contend that scapegoats also permeate the law, both in terms of problems at which legal interventions are aimed and in terms of the purposes and impacts of legal interventions themselves. (15) Inspired by Calabresi's commentary (rather than deriving from any expertise in religion, literature, or the social sciences that have considered the concept in a more specialized light), this Essay explores two ways in which the scapegoating idea may intersect with the focus of this symposium issue, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. (16) The first relates to the Bivens regime's rise, which allowed plaintiffs to seek money damages from individual federal officials for certain constitutional violations, and the second relates to the Bivens regime's retrenchment. In particular, the Essay explores the possibility that the Bivens regime's beginnings countered various exercises in scapegoating and that the Bivens regime's abatement constitutes an exercise in scapegoating. As part of the latter discussion, the Essay also proposes a potential corrective course.

Part I examines how the earlier cases can be seen as responding to social structures that have scapegoated racial, economic, and other groups through overaggressive policing, mass incarceration, and inequitable government conduct more broadly. Part II examines how the later cases can be seen as scapegoating the earlier cases. Current Justices condemn their predecessors' work as supposedly legislating from the bench while seeming to do the same in and beyond the Bivens context. The Supreme Court thus makes a convenient sacrifice of caselaw that its majority appears to oppose on ideological grounds. And it does so while arguably continuing the supposedly errant conduct depicted as justifying the ritual in the first place--and while potentially discouraging the forces of political change from pushing Congress to get involved. Part II closes by contending that legislative intervention could break the scapegoating cycle and by discussing some steps the legal community could take to advance that aim.

  1. EARLY CASES AS A RESPONSE TO SCAPEGOATING

    According to Judge Calabresi, scapegoating's core lies in "blaming someone, rather than facing up to the underlying problem." (17) A visionary of tort law, Calabresi started there. "[W]e always think that accidents are due to somebody drinking, or to somebody speeding, or to somebody having bad brakes," he said. (18) "The fact that they almost always happen at the same curve, at the same exit, or are made worse because we do not have airbags, is not what we focus on." (19) For "[i]t is much easier to say, 'it is that person's fault; he or she was the one who was responsible for the thing.'" (20) And while "to some degree it is true," he concluded, it can also become trite. (21) Ever heard that "[g]uns do not kill, people do"? (22)

    As another legal scholar puts it, "The essence of scapegoating is the attempt to identify the sources of social problems as external to the group." (23) The crux of the practice is "a tendency to blame... problems on easily identifiable objects or entities rather than on the social and economic practices that actually produce them," such that "[o]nce identified as the culprit..., this blame-holder comes to symbolize and embody the problem itself." (24) Scapegoating, then, shifts fault for complex social challenges from in-groups to out-groups, and it should come as little surprise that disadvantaged populations may often bear the brunt of this inclination. The present Part suggests that it may be productive to view the Bivens regime's rise as a response to this phenomenon.

    1. Bivens

      Webster Bivens asserted that federal agents "entered his apartment and arrested him for alleged narcotics violations," "manacled" him "in front of his wife and children," "threatened to arrest the entire family," "searched the apartment from stem to stern," and hauled him "to the federal courthouse in Brooklyn, where he was interrogated, booked, and subjected to a visual strip search." (25) Bivens's complaint alleged that the agents did all this without a search warrant or an arrest warrant and that they employed excessive force. (26) "[F]airly read," the Supreme Court said, the complaint also alleged a lack of probable cause. (27) But as Jim Pfander explains in his masterful telling of the story behind the case, Bivens was "involved in drug trafficking at the time of the arrest and search of his apartment." (28) Indeed, he was "imprisoned on a federal narcotics conviction" when he filed suit against the officers. (29) And the raid took place on the advice of an Assistant U.S. Attorney who, according to one of the defendants, knew that "two different working groups of federal agents had bought drugs from Bivens in separate undercover operations." (30)

      Given all this, one might regard what happened to Bivens as "routine." (31) But the Court saw something larger than Bivens the man in Bivens the matter, which it decided in 1971. The Court saw allegations that spoke to problematic police conduct more broadly. "An agent acting--albeit unconstitutionally--in the name of the United States possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own," said Justice Brennan's majority opinion, (82) citing cases throughout involving assertions of improper searches and seizures by federal officials. (33) Chief Justice Burger's dissent also acknowledged that "[b]eyond doubt the conduct of some officials requires sanctions"--pointing to "cases like Irvine [v. California]," (34) which involved police officers repeatedly making warrantless entries to install listening devices in a suspect's home. (35)

      In Bivens, the Court must have also seen allegations that echoed the treatment of James Monroe, a black man who was actually blameless of the crime that law enforcement officers cited when raiding his home and rounding up his family (36)--and whose 1961 civil rights case likewise provided an occasion to expand the constitutional tort system considerably. (37) "[A]ssuming Bivens' innocence of the crime charged," said Justice Harlan's concurrence shortly after referencing Monroe v. Pape, "[f]or...

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