CrimProf Blog

Reflecting on a Full Life with Big Fish

One of my goals for the Crimprof blog, as I suppose would already be clear from some of my posts (e.g., What Cobra Kai Teaches Profs), is not merely to (of course) be a forum for issues of substantive criminal law and criminal procedure, and (of course) a forum for the lawyering and education of such issues, but to more generally be a forum for thoughtful—and even merely playful—consideration of legal education, lawyering, and, well… life. Striving for mindfulness and joy, including through the study of world religions and philosophies, is not only important to me personally, but is becoming increasingly relevant in my scholarship (e.g., Why Mercy Cannot be Automated).

So, first, a quick shout-out to fellow Crimprof editor Melanie Reid, who put together and will be moderating a panel on Professional Identity Development Among Faculty at the upcoming SEALS annual conference in July. Here’s the description:

A lot of emphasis has been placed in law schools on the new ABA standards requiring law students to develop their professional identity. Students are asked to reflect on their values, intentions, and personal motivations. But what about our professional identity? What internal and external factors motivate us as faculty? The science of human flourishing has identified several key factors for success: continued learning, connection, resilience, finding purpose, and play. The discussants will share how they arrived at their own extrinsic and intrinsic motivators, how these can be used to contribute to the betterment of the legal system and our students (purpose), and how we can build community among faculty (connection).

I’m really looking forward to learning there.

Second, I will sometimes share a book or movie (or, as in this case, a book that is also a movie) that seems worthwhile to any of those aspects of human flourishing. The book/movie I have in mind today is Big Fish, a 1998 novel by Daniel Wallace then adapted into a 2003 film directed by Tim Burton. I highly recommend both, as they differently encapsulate the magic of imagination and storytelling, arts we may undervalue. Both remind us against, as so well expressed in the movie, the story told wrong:

“Will never told you?” asks Edward Bloom, “Ah, probably just as well. He would have told it wrong anyway. All the facts and none of the flavor.”

I fear we lawyers and law professors too often make that mistake. All facts… no flavor.

From the book, I’ll share just one terrific passage, with play of course being one of those components of flourishing (this is found in Part II, His Greatest Power):

There was this man—we’ll call him Roger—who had to go out of town on business, and so left his cat in the care of a neighbor. Now, the man loved his cat, loved his cat beyond all things, so much so that the very night of the day he left he called his neighbor to inquire into the general health and emotional well-being of this dear feline. And so he asked his neighbor, “How is my sweet little darling precious cat? Tell me, neighbor, please?”

And the neighbor said, “I’m sorry to have to tell you this, Roger. But your cat is dead. It was run over by a car. Killed instantly. Sorry.”

Roger was shocked! And not merely at the news of his cat’s demise—as if that weren’t enough!—but also at the way in which he was told about it.

So he said, “That’s not the way you tell somebody about something as horrible as this! When something like this happens you tell the person slowly, you ease them into it. You prepare them! For instance. When I called this evening you should have said, Your cat’s on the roof. Then the next time I call you would say, The cat’s still on the roof, he won’t come down and he’s looking pretty sick. Then the next time I call you might tell me the cat fell off the roof and that he’s now at the vet in intensive care. Then, the next time I call you tell me—your voice sort of quivery and shaky—that he died. Got it?”

“Got it,” said the neighbor. “Sorry.”

So three days later Roger called the neighbor again, because his neighbor was still watching the house and checking his mail, et cetera, and Roger wanted to know if anything important had happened. And the neighbor said, “Yes. As a matter of fact, yes. Something important has happened.”

“Well?” asked Roger.

“Well,” the neighbor said. “It’s about your father.”

“My father!” exclaimed Roger. “My father! What about my father?”

“Your father, said the neighbor, “is on the roof…”

 

Academia’s Farcical Foursome

It began in 1954, with Kingsley Amis publishing Lucky Jim.  Surely generations of student-turned-professors had already found academia absurd, but nobody had articulated it quite so well.  So, if you find yourself nearly fed up with pretention, manipulation, incompetence, and all else that goes with, you owe it to yourself to spend some time with Jim Dixon, Margaret Peel, Christine Callaghan, and the Welch gang.

“How had [Welch] become Professor of History, even at a place like this?  By published work?  No.  By extra good teaching?  No in italics.  Then how?” 

And so it goes, with my favorite exchange being this one between Dixon and Callaghan:

“Because I like you and I don’t like him.”

“Is that all?”

“It’s quite enough.  It means each of you belongs to the two great classes of mankind, people I like and people I don’t.”

Amen.

Just two notes.  One, while there are wonderful female characters in all four works I am going to highlight, there is an unfortunate something to it having begun in 1954: the prof leads are all male.  So, there is a void for some great author to fill, to be sure.  Two, there have been at least a couple film adaptations of Lucky Jim (one of which is not Bob Odenkirk’s Lucky Hank—more on that in a moment), but I haven’t seen them.  I too have homework to do.

Next up, published in 1975, is David Lodge’s Changing Places: A Tale of Two Campuses.  I can’t rate this one with the other three… but nor do I wish to leave it out.  As Lodge explains in a 2010 Introduction, it was born when he took a leave of absence from his Birmingham University lectureship for a stint as a visiting Associate Professor at UC Berkeley.  It is likely to be most enjoyed by those who know at least a bit about ‘across the pond,’ and who think fondly of a thing or three from the 1960s.  The adventures of professors Philip Swallow and Morris Zapp are easily digested, and they continue forward into what becomes a trilogy.  I am a huge fan of that format (here I give a nod to its master, Robertson Davies), but while I certainly enjoyed the antics of Changing Places, again, I can’t place it equal to the other three in my ‘pantheon.’  Still, it is a fun read.

Which brings us to 1985, and Don DeLillo’s White Noise.  This one is so unique that it’s hard to know where to begin.  But from the disciplines of Hitler Studies to car crashes to Elvis; to an airborne toxic event (Nyodene D.) that ultimately makes sunsets unbelievably beautiful; to the secret life of unlicensed psychopharmaceutical Dylar… there is just something in this novel’s DNA that sings. 

“We are the highest form of life on earth,” DeLillo notes, “and yet ineffably sad because we know what no other animal knows, that we must die.”  Thus it is that “all plots tend to move deathward.  This is the nature of plots.”  Sigh.  And yet there is “the day Wilder got on his plastic tricycle” and those sunsets from the overpass… you owe it to yourself; give this one a read.

There is also a 2022 film adaptation starring Adam Driver as Professor Jack Gladney.  It had great promise, but I felt it lost itself partway through.  At the least, one ought to first read the book, as is typically the case.

Last, but most definitely not least, there is Richard Russo’s 1997 Straight Man.  Russo is one of the few authors for whom I would recommend reading every novel he has written, even as one ought not expect each to match his best, three brilliant works written a row: Nobody’s Fool (ultimately the first of the North Bath Trilogy), Straight Man, and Empire Falls.

As for our focus here (the academic novel), there is no better ridiculous—yet mostly loveable—academic than professor William Henry (“Hank”) Devereaux Jr.  So, if you are going to read only one, as they say, make it Straight Man.

Finally, there are excellent film adaptations of some of Russo’s work.  Paul Newman is spot on as Donald “Sully” Sullivan in Nobody’s Fool, surely because he was right in thinking “the character … the closest to himself that he had ever played.”  Ditto Ed Harris as Miles Roby in Empire Falls… and there you get an ever-wonderful Philip Seymour Hoffman and the last Paul Newman work to boot.  But while I am a huge fan of Bob Odenkirk—I am the proud owner of the LWYRUP plate in Oklahoma—I’d give Lucky Hank a pass.  It is the plot of Straight Man, sort of (paying homage in title to Lucky Jim)… but scripted in a way that it could have, had it not bombed out, become a continuing series.  Yup, that’s precisely the way to ruin a brilliant one-off.

Crim Book Recommendations

There are of course many books about the criminal law, some of which are fascinating and some of which … aren’t. Here’s are some that I enjoy, where I focus on those I’ve most often used in teaching seminars or that I most often recommend to students. (Thus, extremely scholarly books aren’t here, no matter how brilliant.) Feel free to share any comments or additions, including additions highlighting your own work, in the comments.

Steve Bogira’s Courtroom 302 gives a wonderful sense of the day-to-day realities of an American criminal courtroom. Even as some of the specifics are becoming more dated, the book remains a gem.

John Grisham’s The Innocent Man deftly describes the false conviction and (effectively) systematic torture of Ron Williamson. Grisham of course also has novels that address such matters, including The Confession; few of his later works compare to his early writing, however, and all of his fiction tends to be more fun read than inspiring insight into our systems of criminal justice.

Possibly the best single volume on false convictions is Michael Morton’s Getting Life. Simply amazing.

Some of those false convictions of course result from eyewitness identification, for which Ronald Cotton and Jennifer Thompson-Cannino’s Picking Cotton remains a groundbreaking and redemptive work. Tom Wells & Richard Leo’s The Wrong Guys is a harrowing tale of false confessions. And Shaka Senghor’s Writing My Wrongs provides an inside look at the drug trade that can transform young kids into killers, from which some—including the author—fortunately manage to transform back again.

Anyone wanting to understand the injustice of our criminal justice system couldn’t do better than beginning with Bryan Stevenson’s Just Mercy. It is powerful, inspiring, and deeply troubling. A convincing account of the system’s systemic racial injustice is also found in Michelle Alexander’s The New Jim Crow, and Mark Godsey brilliantly chronicles the journey from prosecutor to innocence lawyer in Blind Justice. The three make a powerful trifecta.

No list would be complete without Anythony Lewis’ Gideon’s Trumpet. Merely as a read it is not as terrific as other books, but it remains a classic. Another classic is certainly Truman Capote’s In Cold Blood, and this one absolutely stands the test of time—an amazingly detailed chronicle of senseless bloodshed. Another is Edward Bennett Williams’ One Man’s Freedom; written in 1962, many of his particular examples are dated, but his general ‘defense of criminal defense’ remains as strong as ever.

And now we have a ‘modern classic’ describing the incredible attempts of Jonathan Rapping to reform public defense: Gideon’s Promise. As is most often the case, it’s even better than the movie (Gideon’s Army). Roy Black’s Black’s Law for the most part holds up well, and would be another good read for any potential criminal defense attorney.

There aren’t too many books chronicling the work of a diligent prosecutor, making Steven J. Phillips’s No Heroes, No Villains a worthy read. Although arguably he makes the prosecution somewhat more difficult than it might have been under a different theory, it presents a fascinating question of how to apply the rules of criminal homicide to a tragic crime. Also noteworthy is Vince Bugliosi’s Helter Skelter, as well as Bennett Gershman’s Prosecution Stories. The latter is sure to spark some classroom debate as it takes positions on charging decisions and other matters on which reasonable minds will disagree.

Students interested in the life of a judge might benefit from Frederick Block’s Disrobed. Some portions are certainly more effective than others, but it is a fairly unique accounting. Of course, they could also turn to Milton Hirsch’s fictional The Shadow of Justice.

Students interested in the workings of a criminal jury might enjoy D. Graham Burnett’s A Trial by Jury or crimprof Andrew Ferguson’s Why Jury Duty Matters.

Students interested in policing might begin with David Simon’s Homicide or Jill Leovy’s Ghettoside. The latter is a bit ‘much’ for me, and I don’t buy her conclusion in strong form, but it’s certainly worth a read.

Deviating for a moment from the criminal law—since we are all teachers—Ken Bain’s What the Best College Teachers Do does a brilliant job of assessing what makes for the best of our profession. (But as a warning, the other books in the ‘series’ are not nearly so good.)

In that same vein, students who plan to practice in a law firm might appreciate the wisdom of Mark Herrmann’s The Curmudgeon’s Guide to Practicing Law.

For something truly different, consider Mark Essig’s Edison & The Electric Chair. Would Thomas Edison promote electrocution by alternating current merely to gain support for his own supplies of direct current? Yes, he would.

Guest Post: Kolber on Punishment for the Greater Good

The following post was written by our colleague Adam Kolber about his new book, Punishment for the Greater Good, which is available here (discount code ALAUTHC4) or through request from a library. (He also has a four-minute animated book teaser.) I am very pleased to highlight his work; if you have written a book and would like the same, please let me know!

More than ten million people are incarcerated around the world, even though punishment theorists have struggled for centuries to morally justify incarceration and other punishment practices. Efforts so far are incomplete, referencing parts of theories that have yet to be fleshed out. What can we say about the justification of incarceration today?

Retributivists claim that people deserve punishment because of their wrongdoing. Punishment can be morally justified, they say, provided it is proportional to wrongdoing. Consequentialists, by contrast, claim that if punishments like incarceration are justified, they are justified because they lead to good consequences, such as crime prevention and offender rehabilitation, that more than make up for the suffering and other bad consequences they inevitably cause. In my new book, Punishment for the Greater Good (Oxford University Press), I argue that a “pure consequentialist” approach (one that denies the value of deserved punishment) is better than the “standard retributivist” approach (which justifies punishment based on moral desert) if we seek to address incarceration in the here and now.

In the book, I identify several problems with standard retributivism. Here, I’ll mention one: Standard retributivists make proportional punishment central to their view but haven’t successfully explained how to determine when a punishment is proportional. They suffer from what I call the quantum problem: In order to actually punish someone, you need to justify some quantum of punishment. Retributivists haven’t done that, and I don’t see how they ever will.

Retributivists can’t just rely on their intuitions about proportionality. In an 1883 case, a Native American, named Crow Dog, killed another Native American. Through a tribal justice process, he was required to deliver $600, eight horses, and a blanket as restitution to the victim’s family. The U.S. thought the punishment inadequate and sought the death penalty. Two criminal legal systems came up with radically different solutions. If retributivists use their intuitions to assume that any particular amount of incarceration is justified for even a serious crime like homicide, then they haven’t justified incarceration; they have simply assumed what they need to prove (and what carceral abolitionists can properly demand of them).

Some scholars say that we just haven’t figured out proportionality yet. But while this is never a satisfying response, it is particularly inadequate when we look at punishment, as I do in the book, from a here-and-now perspective. We can’t incarcerate someone today based on a promise to deliver an adequate theory of punishment sometime in the future. Nevertheless, thousands of law review articles and legal cases simply assume that proportional punishment is a sufficiently clear and coherent concept to use when we lock people up.

Consequentialists, by contrast, don’t give proportionality a primary role. They seek to punish when doing so has net benefits. Since both crime victims and incarcerated perpetrators suffer, consequentialists generally seek to reduce total crime-related suffering. While many people overestimate the ability of incarceration to prevent crime (especially its marginal deterrence), there is little doubt that it deters an enormous amount of crime in an absolute sense and prevents the most dangerous offenders from regularly harming others. When incarceration is not a good tool for public safety, consequentialists oppose it and seek better tools. They don’t make people suffer just for the sake of past bad conduct.

Many find consequentialist punishment unappealing because it could lead, under some imaginable circumstances, to the punishment of the innocent, contrary to a firm deontological constraint that prohibits knowingly punishing in excess of desert. But reasonable retributivists will also punish the innocent, at least under sufficiently catastrophic conditions, as I argue in chapter 4 of the book: the dispute largely comes down to setting the threshold at which punishment of the innocent is permissible, and consequentialists plausibly have the better end of the dispute.

Even if we could perfectly assess proportionality, retributivist proportionality is unappealingly counterintuitive. Consider two equally blameworthy offenders named Sensitive and Insensitive. They are alike in all pertinent respects except for the amount they suffer in prison. Sensitive suffers tremendously, while Insensitive suffers too but manages to cope and make good friends. If these equally blameworthy offenders spend the same three years in prison, I claim that they have not been punished equally in any sense that matters from a moral perspective. Moreover, if Insensitive’s sentence was proportional, then retributivists need to explain what justifies the additional suffering we knowingly impose on Sensitive.

We could try to punish in ways that take sensitivities into account. But doing so leads to counterintuitive results as well. Suppose Sensitive suffers so much because, prior to prison, he lived a life of luxury. Few would welcome punishing Sensitive for a shorter duration (or in better conditions) to accommodate his wealth-induced sensitivity. Nevertheless, it’s hard to see why retributivists can knowingly make Sensitive suffer more than Insensitive when they are equally blameworthy. Consequentialists must take suffering into account too. But they’re not specifically committed to proportional punishment and so needn’t reach the particular counterintuitive results retributivists face here.

The affirmative case for consequentialism arises, at least in part, from its comparative completeness. Armed with a way of valuing what is good and bad, pure consequentialism is quite complete. While debates about how to value consequences rages on, standard retributivists face nearly-identical challenges. In order to measure wrongdoing, for example, most retributivists consider the amount of harm an offender caused. Such measurements require them to decide whether to treat harms as bad experiences, dissatisfied preferences, or something else entirely. Since I conduct a comparative analysis of pure consequentialism and standard retributivism, I spend the better part of a chapter arguing that, if anything, pure consequentialism raises more manageable questions about value than standard retributivism does because pure consequentialists don’t assign intrinsic value to moral desert and needn’t wrestle with its associated mysteries.

Once consequentialists have determined the value of various consequences and their best probabilistic assessment of relevant empirical facts, they can tell us how to behave in a wide variety of circumstances. Importantly, they can say quite a bit about whether an instance or practice of incarceration is likely better or worse from a moral perspective than some alternative. The empirical issues are extraordinarily complicated, but at least we know how to address them. (If a patient must choose between two forms of cancer treatment and the scientific evidence is conflicting, we can still do our best to pick one using relatively well-agreed upon methods of analysis.) With numerous choices, we may not know which option will lead to the greatest good, but we can often make choices for the greater good. It’s hard to ask for more in the here and now.

Imagine a car race with two competitors. If one car is missing too many parts to start, even its shabby competitor is superior. Similarly, if standard retributivism is too incomplete to yield verdicts about incarceration, then pure consequentialism is superior in the here and now, even if it has its own blemishes. Hence, my claim in the book is one of superiority, not adequacy. I claim that pure consequentialism is superior to standard retributivism, not that pure consequentialism is necessarily an adequate theory to adopt in the here and now. An adequacy claim would require a much deeper defense of consequentialism than I provide in a relatively short book and would require us to look at many other approaches to punishment than the two I focus on. Still, to the extent that I address popular forms of consequentialism and retributivism, if I succeed in arguing that pure consequentialism is superior to standard retributivism, I have provided you with at least some reason to increase your confidence in pure consequentialism’s adequacy as an approach to punishment in the here and now.

This post is adapted from a longer version at Marcus Arvan’s “New Work in Philosophy” substack.

Walsh on Eyewitness Identifications after Perry v. New Hampshire

Dana Walsh has posted Eyewitness Identifications after Perry v. New Hampshire: A Call for Greater State Involvement in Ensuring Fundamental Fairness (Boston College Law Review, Forthcoming) on SSRN. Here is the abstract:

This Note addresses the future eyewitness identifications after the 2012 Supreme Court decision Perry v. New Hampshire and calls on states to take greater action to ensure reliability of eyewitness identifications at trial.