Chapter 4

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Lawyers and the Court System

"I do not care to speak ill of any man behind his back, but I believe the gentleman is an attorney" - Samuel Johnson

      It must be well understood that a dead animal rots all over at the same time. Thus, in a society that is in decline, all the institutions will begin to fail. As our education system is failing so is our justice system. And as you read this book you will understand that all our institutions are failing.

      We, as did the Romans, once had the best justice system in the world. But fundamental changes in the system took place. The first to be discussed and perhaps the most important is the idea of “activist judges. Although judges do not make law directly, their interpretations of existing law can have that effect.

      For example, the Constitution reads in article 1 “Congress shall make no law respecting an establishment of religion …”. So let’s play with these words in the way that an activist judge might do. First by “Congress” they obviously meant the “government” so it actually reads “the Government shall make no law …”. But it also can not be done by regulation, policy, etc. So it reads “The government shall make no law, regulation or policy, respecting an establishment of religion … “. But surely this extends beyond the federal government. For example, a state government can’t do this either. It would make no sense to forbid the federal government to respect an establishment of religion and then allow the states to do it. Imagine if in a particular state, everybody had to be Catholic. But beyond states this certainly extends to county and city governments as well.

      So now what we have is “Governments, federal, state and local shall make no law, regulation or policy respecting an establishment of religion …” Now that sounds like a good thing. Well guess what? Schools are an arm of state government and allowing Christmas trees, nativity scenes, prayer and pictures of Jesus in schools is respecting Christianity. Also, nativity scenes on city hall grounds does the same. Therefore, all these are banned. Notice that no law was passed to ban Christmas from schools. Such a law would have never passed any legislature. Therefore, it had to be done by judicial edict, done by people who were not elected and responsible to no one. This is judicial activism at its finest.

      In the last 40 years political parties, particularly the Left, realized that if they controlled the courts, they could get interpreted law in place that would bypass the legislative process. This results in laws that would have never passed the Congress or state legislatures. Another example is abortion. Abortion was made legal, not by the Congress and not by the state legislatures but by the Supreme Court. Indeed, control of that court is now the supreme fight going on in Washington D.C. today. The only question that is focused on at Senate hearings before the judicial committee is “do you support Roe vs. Wade?” That issue outweighs everything else.

      And how was this done? By “inventing” a right to privacy in the Constitution. The word privacy does not even appear in the Constitution but the court said that it is there by implication. One might understand the privacy between the doctor and the patience. But in abortion clinics many people are around. Nurses, secretaries arranging the schedule, the billing people are all involved. That is not privacy between the doctor and the patient.

      But judicial activist goes beyond the Supreme Court at least below it. Judicial activism exists in the lower federal courts. California has an initiative process. The citizens can get something on the ballot as an initiative and have it voted on as law. This is democracy at its purist form. Many initiatives have been passed and the next step is always that somebody, the losers, files a law suit and issue goes to court. They are generally overturned in the courts, that is, by the courts, and that is the end of the people’s will. For this to work, you have to have control of the courts. It is said the elections finalize or end something but in California, elections start something – a court fight.

      Federal judges are nominated by the President and approved by the Senate. This means if you have control of the Presidency and the Senate you can stack the courts with people favorable to your socio-political position. Then you simply take everything to the federal courts and have law made by interpretation or overturn law made by the people.

      This is, of course, a fundamental change in the system devised by our Founding Fathers. Although they created a court system to protect the Constitution, they did not envision the erosion of the legislative process by the court system to the extent it occurs today. But there were fears that the court system with its judges accountable to no one, could  become a problem. That is why they set up a system for impeaching federal judges. Impeachment of federal judges rarely happens.

      The process makes sense to those who want a change. What would rather do get a law passed in 50 different state legislatures or get a law effectively made in federal courts? Which is the easiest path to take?

      But activist judges are not the only change we have made to the justice system. My favorite issue is criminals roaming the streets. Why aren’t these people in jail? Not only robbers and burglars but sex offenders! Our children are not safe going to and from school. Indeed, they are not safe in their beds. Everyday one hears about another child who has been kidnapped and an Amber alert is in process. Many of these children are killed. So not only are they not getting educated, we can't even protect them. What kind of society can’t educate and protect its children. Even third world countries can do that.

      When I was a kid we left our front door open and did not even lock the screen door. Now I lock all my doors and put a piece of wood in the slot of the sliding doors and windows so they can’t be slid open. What a hassle. Every time I go onto the patio I have to stoop over and remove that plank then when I come in I have to put it back. Why? Because we now have “home invasions”. In this case, people just come into your house and rob you in your presence. If you resist they will harm you. A man’s house is truly his castle these days. I am considering digging a moat.

      We were safe in the 50’s and before because the justice system worked. I lived in Georgia. If you were convicted of a crime you would find yourself lugging a 50 pound ball around which was attached to your ankle while cutting grass along the roadside and while wearing a black and white stripped uniform. So what happens today? Well, physical labor for prisoners has been eliminated. This work has been contracted out and paid for by the taxpayer – creating jobs. Prison labor is not used. Meanwhile, the prisoners are enjoying prison cells where they have TVs, radios, CD players and Ipods. They also enjoy weight rooms where they can bulk up, basketball courts and softball games. Additional, they have PCs and access to the Internet. Add room and board and free medical care and that is not a bad deal. One prison had a rock band and sold their CDs while their music was being played on MTV!

      There is no real punishment these days. “Penitentiary” is derived from the word “penitence”.  You are supposed to think about your life and where you went wrong. You are supposed to do some introspective thinking. Little of that seems to be going on as is proven by the high recidivism rate.

      Add to that that many people found guilty are not even sent to prison. Often there is probation or early release if they happen to go to prison. So how did we go from chain gangs to this?

      Also, there is a shortage of prisons. Many prisoners are released early to make room for the incoming prisoners. The Left says that the money that would be used to build more prisons would be better spent in social programs that would prevent crime in the first place. Some say that people commit crime because they are poor. Well that may be but they did have a chance at a free 12 year education after all.

      The problem with that thinking is that more prisons work. They keep criminals in jail and thus they keep the streets safe. This way is guaranteed to work. What about more social programs instead? Well, that is not guaranteed to work. After all, we have had many social programs for many years and there is still crime and the streets are still unsafe.

      Some see this as merely the cost of doing business. They argue that in a society of 300,000,000 people there is bound to be murders, rapes, robberies and burglaries. Cost of doing business? I am unsafe and have barricade myself in my house and you tell me that this is just the cost of doing business. I find that a lame excuse. Tell the citizens whose children have been raped and murdered that this is the cost of doing business. We simply need to build more prisons. End the early release programs, remove the TVs ad other toys and let these people do penitence. Recidivism rates (number of criminals who re-offend after release from prison) is high. Talks with prison psychologists seem to be doing no good at all. So the only option to reduce crime seems to be put the re-offender back into prison and keep them there this time.

      But this is a complicated issue that has economics at its base. The economic model is simple. The more criminals there are on the streets, the more crime there will be. The more crime there is, the more money trial lawyers will make. Remember the Miranda rights quote “if you cannot afford an attorney, one will be appointed for you free of charge.” When this went into effect it was sarcastically called the full employment act for lawyers. These lawyers are paid for by the taxpayers. So the trial lawyers benefit economically from this lenient justice system. More crime means more clients. More clients means more money.

      The question for the lawyers is how do you keep criminals on the street. Then answer is you get Senators, Congressmen and state legislatures to create a lenient justice system. Now here is the clincher. One of the largest contributors to the Democratic Party is, you guessed it, the Trial Lawyer’s Association. That completes the loop. Give money to Democrats to pass lenient laws as regards punishment. This creates more criminals on the street who commit more crime. This creates income for trial lawyers some of which is cycled back to the Democrats for election funds to keep the process going.

      So we have a created a flexible legal system replacing the former strict one. Flexibility is a requirement for there to be a “justice industry”. Suppose you commit a crime. Further suppose that there is no plea bargaining and there are mandatory sentences. The only thing your lawyer can do is see to it that you get a fair trial in that the prosecution doesn’t do anything sneaky like using bad evidence. Now that alone is worth getting a lawyer even though he can’t get you off.

      But how much more would that lawyer be worth to you if he can get you off? Today they can get you off or at least minimize your punishment. For example, he can use plea bargaining. Plea bargaining is where you agree to plead guilty to a lesser included offense. For example, forcible rape includes assault. So the charge might get plea bargained down from forcible rape to assault. This works for the state since if you plead guilty, no trial is necessary and thus the cost of the trial is eliminated. There is a shortage of prosecutors as there is a shortage of most professionals. Each prosecutor may have dozens of cases he/she is prosecuting. He/she is evaluated based on how fast they dispose of their cases. So he or she is approached by a defense lawyer who is ready to make a deal. “My client”, he says, “is charged with driving under the influence of alcohol. He is willing to plead guilty to driving while impaired.”

      Now the prosecutor has a decision to make. Accepting that plea and the case is over and the prosecutor can add this disposition to his or her weekly progress report. On the other hand if he/she does not accept the plea, then the case goes to court and there is work to do. He/she will accept the plea and move on meanwhile there is now another drunk driver on the road. It may be possible to plea down murder to man slaughter.

      A lawyer is worth a lot of money if they can pull things like that off. But this all depends on flexibility in the justice system. If there were no plea bargaining the lawyers would make less money.

      Looking at sentencing we see the same thing. To the extent there are mandatory sentences, little can be done to help you. But if the sentencing system in flexible, say, you could get from 5 to 10 years, then something may be done if you get the right lawyer who knows the judge, perhaps they play golf together. Although this is the judge’s decision, the point is that the criminal has no knowledge of how to play the game. He needs a lawyer to set this up for him. He might not need the lawyer if there were mandatory sentences because the lawyer could not help him – the sentence is mandatory.

      All of this leads to rich lawyers and unsafe streets.

      But Democrats have yet another reason to do this. Most crime is committed by the poor. The Democrats represent the poor. So the Clarion call is “put us in office and we will keep your children out of jail.” Remember that if you keep the Democrats in power you will also get the activist judges that make law from the bench. These laws always advance the liberal social agenda of the Left. So except for the horrid outcome where the streets are unsafe and you have to blockade yourself in your own home, the system is perfect.

      Another change from my time is that lawyers advertise. When I was young I was told that lawyers and doctors do not advertise. These people are professionals and cheap advertising is beneath these professionals. Today we see lawyer advertisements everywhere, on TV, on billboards and in newspapers. It has turned the law from a professional activity into a commercial enterprise. This is an indication of the desperation of an overabundance of lawyers to get work.