United States Court of Appeals,

Ninth Circuit.

Carl Merton IRONS, II, Petitioner-Appellee,

U.S. Attorney General, Intervenor,

v.

Tom L. CAREY, Warden, Respondent-Appellant.

No. 05-15275.

Argued May 11, 2005.

Filed March 6, 2007.

Before Stephen Reinhardt, John T. Noonan, and Ferdinand F. Fernandez, Circuit Judges.

[Unanimous opinion by Reinhardt reversing the District Court’s grant of habeas corpus.]

Noonan, Circuit Judge, concurring:
          Proper resolution of this case, on its face involving the fate of a single individual, involves the clash of two constitutional principles of importance to every inhabitant of our country:
         

          Congress has the power to determine the jurisdiction of all federal courts.
         

          Congress does not have the power to determine how a federal court shall decide a case.

          An easy solution of the clash is to say that the greater power includes the lesser. If Congress can determine jurisdiction and so take away any judicial supervision of the subject, a fortiori Congress can specify what materials the courts may use in deciding the case. This reasoning is of a mathematical character. It has the precision and the force of Euclidean geometry. In addition, it has a pragmatic appeal. Why force Congress to use its radical power to remove jurisdiction, if the purposes of Congress will be served by Congress directing the process of decision?

          This line of argument has an undoubted appeal. It is nonetheless mistaken. Euclidean logic does not dominate a judge's careful consideration of all the aspects of matters that are far from linear. A simple example: The power to kill is greater than the power to torture. The state may kill individuals. It may not torture them. The pragmatic argument that Congress could remove all jurisdiction may be met pragmatically: the people would not put up with legislative abolition of such sweeping character, any more than the people would say, "If you can't torture them, kill them."
         

          More fundamentally, the Euclidean line of argumentation advanced above is based on a profound misunderstanding of the judicial power and the role that judges, uncontrolled in their reasoning by the legislature, perform to make it work. Legislatures exist to make laws. Courts exist to decide cases. The separation of these functions is part of our democratic system of government. To allow the legislature to decide a case is to deny the separation. To allow the legislature to tell a court how a case should be decided is worse. It allows the legislature to mask itself under judicial robes. It puts forward as the judgment of a court what in actuality is the judgment of the legislature. Impermissibly it mixes the two branches. It does so to the great detriment of the judicial branch which is made to act as if it were performing its judicial task while it has had its ability to perform this task removed.

            It may be said that Congress has the power to approve or disapprove the Federal Rules of Procedure, and these rules play a part in the decision of a case. It may be further argued that Congress can determine the number of judges, where they shall sit, how many assistants they may have, and what appeals may be taken, and that all these determinations have an impact on how a particular case will be decided.

          True as these observations are, they do not go to the heart of the matter. The number, venue, and assistance given the judges point to no particular outcome in the decision of a case, nor does the path provided for appeal. The Federal Rules, formulated by judges, operate impartially in all cases. They preordain a decision in none. Even more importantly, they do not determine the law the judges must apply.

          Congress can enact legislation with an effect on the future of litigation in a particular case, e.g. by removing the statutory ground for an injunction restricting future conduct. Mount Graham Coalition v. Thomas, 89 F.3d 554 (9th Cir.1996). Congressional alteration of a statute bearing on future conduct does not usurp the judicial function.

          AEDPA specifies that an application for a writ of habeas corpus "shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States...." 28 U.S.C. § 2254(d).

          Concurring in Williams v. Taylor, 520 U.S. 362, 412 (2000), Justice O'Connor glossed "clearly established" to mean a holding by the Supreme Court, not a dictum. Justice O'Connor's concurrence was adopted by a majority of the Court. Her gloss on "clearly established" was itself dictum because it was not necessary to the decision of the case. Williams, 529 U.S. at 413 (O'Connor, J., concurring). It is a dictum that has banished dicta from the grounds for granting habeas corpus. It is a dictum necessarily narrowing the normal way in which decisions of the highest court are read and applied.

          AEDPA does operate over the whole class of cases of habeas corpus. It does not require a result in any particular case. What it does do is to strike at the center of the judge's process of reasoning. It shuts the judge off from the judge's normal sources of law and curbs that use of analogy which is the way the mind of a judge works. In our system of law where precedent prevails and is developed, AEDPA denies the judge the use of circuit precedent, denies development of Supreme Court and circuit precedent, denies the deference due the penumbra and emanations of precedent, and even denies the courts the power to follow the law as now determined by the Supreme Court--the precedent to be applied must have been in existence at the earlier moment when a state decision occurred. A more blinkered concept of law cannot be imagined--law, particularly constitutional law--is treated as what once was the law. The development of doctrine is despised. That despisal is a direct legislative interference in the independence of the judiciary.

            It could be said that the ban on using Supreme Court decisions issued later than the relevant state court determination is a ban on the retroactivity of such decisions; and the Supreme Court has more than once announced constitutional decisions that are good for the future but cannot be read back into the past. See, e.g., Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). True as that is, for the Supreme Court to choose not to make its decisions retroactive is not the same as Congress choosing to do it. The latter action is an interference with a prerogative that goes with wise judging. Whether to judge only for the future is for the judge to decide.

          It might equally be asserted that the exclusion of a circuit court's precedents from consideration by the circuit is simply a limitation on the jurisdiction of circuit courts. So it might be said, but far from accurately. AEDPA does not address jurisdiction: it addresses the materials for judging. It deprives a whole class of cases of their normal value as governing authority for the circuit which has decided them.

          Federal judges have taken an oath to uphold the Constitution of the United States. That oath has always been understood to mean the Constitution as it is interpreted by the courts. It is, of course, a grade school fiction that the Constitution does not change. It changes constantly: by constitutional amendment, by decisions of the Supreme Court, and by the invention of such things as the airplane, automobile, and internet. For a judge to be frustrated in following the most recent decision of the Supreme Court is perilously close to forcing the judge to violate his oath to uphold the Constitution as it presently is understood.

          Sometimes a lawyer or even a judge will say, If this rule is upheld, you can expect even worse to follow--a variant of the biblical expression, "If that is what they do in the green wood, what will they do in the dry?" It is unnecessary to engage in such speculation as to AEDPA. It already appears to accomplish a sizeable shrinkage of judicial independence.

          Can the constitutionality of AEDPA be sustained? Our circuit has so ruled. Duhaime v. DuCharme, 200 F.3d 597, 601 (9th Cir.1999). I am bound by this decision. Moreover, the Supreme Court has upheld the application of AEDPA in a multitude of cases, tacitly assuming its constitutionality. Yet if I cannot depart from the law of the circuit, I may still ask the question as to constitutionality in the light of governing decisions by the Supreme Court.

          As every law school student knows, Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L.Ed. 60 (1803), held unconstitutional an Act of Congress that attempted to confer jurisdiction on the Supreme Court. Writing for the unanimous court, Chief Justice Marshall declared:

The judicial power of the United States is extended to all cases arising under the constitution.
Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises?

This is too extravagant to be maintained.
In some cases then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read, or to obey?
....
Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him, and cannot be inspected by him?
If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime.

Marbury, 5 U.S. at 178-80.

          These general and fundamental propositions were established near the beginning of our country. They were set out in a case involving congressional meddling with the constitution's limitations on jurisdiction. They unarguably govern congressional efforts to prescribe how a court shall decide a case.

          In a case foundational in vindicating the power of the Supreme Court to review and reverse the judgment of the highest court of a State, large though this impairment is of the sovereignty of the State, Justice Story wrote:

If, then, it is a duty of congress to vest the judicial power of the United States, it is a duty to vest the whole judicial power. The language, if imperative as to one part, is imperative as to all. If it were otherwise, this anomaly would exist, that congress might successively refuse to vest the jurisdiction in any one class of cases enumerated in the constitution, and thereby defeat the jurisdiction as to all; for the constitution has not singled out any class on which congress are bound to act in preference to others.
....
[E]ven admitting that the language of the constitution is not mandatory, and that congress may constitutionally omit to vest the judicial power in courts of the United States, it cannot be denied that when it is vested, it may be exercised to the utmost constitutional extent.

Martin v. Hunter's Lessee, 1 Wheat. 304, 14 U.S. 304, 330, 337, 4 L.Ed. 97 (1816).

          In legislation reflecting the passions of the Civil War, Congress passed a law repudiating the Supreme Court's interpretation of a statute governing the return to its owner of property seized by Union forces during the war. The Supreme Court treated the attempt to curtail its jurisdiction as an attempt to control its decisions:

The court is required to ascertain the existence of certain facts and thereupon to declare that its jurisdiction on appeal has ceased, by dismissing the bill. What is this but to prescribe a rule for the decision of a cause in a particular way? ... We are directed to dismiss the appeal, if we find that the judgment must be affirmed, because of a pardon granted to the intestate of the claimants. Can we do so without allowing one party to the controversy to decide it in its own favor? Can we do so without allowing that the legislature may prescribe rules of decision to the Judicial Department of the government in cases pending before it?
We think not....

United States v. Klein, 13 Wall. 128, 80 U.S. 128, 146, 20 L.Ed. 519 (1872).

          As recently as 1995, the Supreme Court held that a section of the Securities Exchange Act, retroactively directing federal courts to reopen final federal judgments, was invalid:

Congress has exceeded its authority by requiring the federal courts to exercise "the judicial power of the United States," U.S. Const., Art. III, § 1, in a manner repugnant to the text, structure, and traditions of Article III.
....
... Article III establishes a "judicial department" with the "province and duty ... to say what the law is" in particular cases and controversies. Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 177, 2 L.Ed. 60 (1803). The record of history shows that the Framers crafted this charter of the judicial department with an expressed understanding that it gives the Federal Judiciary the power, not merely to rule on cases, but to decide them, subject to review only by superior courts in the Article III hierarchy--with an understanding, in short, that "a judgment conclusively resolves the case" because "a 'judicial Power' is one to render dispositive judgments." Easterbrook, Presidential Review, 40 Case W. Res. L.Rev. 905, 926 (1990).

Plaut v. Spendthrift Farm, 514 U.S. 211, 217-219 (1995).

          Almost two centuries after Marbury, Chief Justice Marshall's reasoning was once more applied to invalidate an Act of Congress that determined what acts violated the religious freedom guaranteed by the First Amendment. Congress had undertaken to enlarge the scope of this freedom beyond the limits set by the Supreme Court. This legislative effort was rebuffed:

The power to interpret the Constitution in a case or controversy remains in the Judiciary.
....
If Congress could define its own powers by altering the Fourteenth Amendment's meaning, no longer would the Constitution be "superior paramount law, unchangeable by ordinary means." It would be "on a level with ordinary legislative acts, and, like other acts, ... alterable when the legislature shall please to alter it." Marbury v. Madison, 1 Cranch at 177, 2 L.Ed. 60. Under this approach, it is difficult to conceive of a principle that would limit congressional power. See Van Alstyne, The Failure of the Religious Freedom Restoration Act under Section 5 of the Fourteenth Amendment, 46 Duke L.J. 291, 292-303 (1996). Shifting legislative majorities could change the Constitution and effectively circumvent the difficult and detailed amendment process contained in Article V.
....
Our national experience teaches that the Constitution is preserved best when each part of the government respects both the Constitution and the proper actions and determinations of the other branches. When the Court has interpreted the Constitution, it has acted within the province of the Judicial Branch, which embraces the duty to say what the law is. Marbury v. Madison, 1 Cranch at 177.

City of Boerne v. Flores, 521 U.S. 507, 524, 529, 535-36, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997).

          With these precedents before my eyes, whatever doubts they raise, whatever answer they suggest, I am bound by controlling case law and so concur.

Reinhardt, Circuit Judge, concurring specially:
          I fully join in Judge Noonan's sagacious concurrence. Would that it were the law of the land. I add only a couple of thoughts.

          After affording federal courts the power to issue writs of habeas corpus in state cases, Congress tells us in AEDPA that we may not grant relief to citizens who are being held in prison in violation of their constitutional rights unless the constitutional error that led to their unlawful conviction or sentence is one that could not have been made by a reasonable jurist. Whether it was reasonable for a state court to misapprehend the dictates of the Constitution in a particular case hardly seems relevant to a citizen's right not to be imprisoned in violation of the fundamental liberties he is granted by the document that governs our societal structure. Nor is authorizing jurists to determine that a citizen's detention is unlawful, but that he must remain incarcerated because a magistrate's error is understandable, consistent with our duty as jurists to enforce the laws and protect the rights of our citizens against arbitrary state action.

          Having granted the courts the authority to review state convictions under our habeas powers, it seems to me inconsistent with our fundamental obligations as judges to require us, except in unusual or exceptional circumstances, to rule for the state regardless of whether it violated the Constitution. Such a mandate appears to me to tell us how to decide a case. That, for the reasons Judge Noonan so well expresses, Congress simply may not do.

Fernandez, Circuit Judge, concurring:
          I concur in Judge Reinhardt's [main] opinion. I write separately for two reasons.
         

          First, I am not satisfied that there was no reason to continue to hold Irons in prison other than the circumstances of his callously senseless murder of another person for trivial reasons. While his answer to whether he still had the rage that led him to kill someone can easily be read in an innocuous manner, it need not be, and the Commission could interpret it to mean that he might. At any rate, I see nothing wrong with being very, very cautious about releasing a person from prison and onto society when he has committed the kind of crime that Irons committed and has done it as flagitiously as he did it. The Board has a right (nay, an obligation) to be exceedingly cautious about setting him free.
         

          Second, Judge Noonan has issued a concurring opinion in which he decries the fact that we (and, probably, the United States Supreme Court) have deemed the AEDPA to be constitutional. I do not join that, and its mere filing would elicit no response from me but for the fact that Judge Reinhardt has concurred in the concurrence. Because that means that two members of the panel have joined that opinion, it might be seen to indicate that the panel is speaking for the court and that the court is, therefore, attacking itself. It might be thought that we have found a new way to create an umbrageous, or stealth, conflict in our jurisprudence, which district courts and attorneys had better take into account. That, I know, is not the intention of my colleagues, who have carefully crafted the concurring opinion to indicate that, at least at this point, they merely wish to express their strongly-held views about the strictures of the AEDPA, without creating a conflict in the law of this circuit.

            Thus, I respectfully concur in Judge Reinhardt's opinion only.

peering out the window.  gazing out the window, i see a train.  a red train, rolling past.  and as it goes there is smoke coming out the top, streaming by.  grey smoke, or is it steam?  dissolving into the air, back to nothing.  one minute there is this clearly defined line, trailing off the edge of the top of the train and the next minute it is nothing -- thin air.  maybe it is a bus, rolling down the street, then suddenly pulling over to pick up passengers, some old lady, and the bus makes that sound and sinks to the ground so she can step aboard, then rises back up.  she pays the fare, and off it goes again.

Do we pick a career because of who we are or is it our career that shapes us?  Or is it cyclical middle ground, where we're initially attracted to something, then as we become that something we get sucked in and the something draws out the latent qualities in us that attracted us to that something in the first place?

i practiced clarinet for the first time in months today.  i also went for a run, even though i didn't want to.  both of those things felt good.  really good.  i also had a number of other tangible, positive milestones at work this past week.  and i went to the opera and the symphony by myself.  i'm trying to force myself to get out, even if it's alone.  so things are going better, but i still feel sad and lonely.

it's interesting watching old couples together at the symphony.  they don't have anything to say to each other, really.  maybe that's inevitable when you've spent 40 years together, and when you're retired and spend most of your day together.  one on hand it's sad.  but just having another person there makes them feel less alone, i suppose.  it's not necessary that words be spoken.

I just finished reading The Bell Jar.  It's excellent, and a quick read.  I'd wanted to read it for a long time, and I'm glad I finally powered through it.  It starts with the protagonist in New York for a month; depressed and somewhat socially isolated, but functional, and follows her progression into madness (and back).  The second half pulls you in as it traces madness.  It's not stream of consciousness, but the first person narration almost gives the effect of it at times.  The book was published in 1963, and I couldn't help but wonder how many people in the insane asylum then are people with easily treatable disorders today. 

The book leaves a lot of questions though.  What was it that pushed Esther over the edge?  She gets rejected for a writing course, she finds out this guy she was going steady with is a hypocrite, her mom is overbearing.  Just generally she seems ill-at-ease with the world.  She gets hooked up with a couple abusive guys.  Is it the combination, or one thing in particular, or is it just who she is?  Is it inevitable that, whatever environment she was in, she descend into madness?  Troubled people tend to find trouble that reinforces their troubledness.

And what brings her back?  After initially going to an asshole doctor, she finds a compassionate woman psychiatrist; she has a benefactor that ensures she's moved to a much better run facility.  Had she stayed in the state facility, it's doubtful she would have improved.  Beyond that, the details are very hazy for me.  There's Joan, and the weird competitive dynamic between them (in Esther's mind anyway).

Plenty to think about.

Money kind of disgusts me.  For the first time in my life, I'm making a lot of it.  And that feels great.  I just got a beautiful new couch, and I'm wrting this from a stylish new leather chair with my feet resting on a matching black leather ottoman.  I want for nothing.  At the same time, it's all kind of sickening.  I was at drinks with some co-workers on Friday, and one said, "you know, I don't even bat an eye at expenses under $100 anymore.  All that stuff is just noise."  I laughed -- this guy makes me laugh a lot, because he's got an excellent, sarcastic delivery.  And I laughed because what he said was true for me too.  If you adjust expenses as a percentage of income, me spending $100 now is equivalent to me spending $10 or $20 a few years ago, and I never batted an eye then. 

It bothers me, though, that I laughed.  That I feel that way.  What also bothers me is how much people with money talk about money.  401k contributions and itemizing tax deductions and saving up for the down payment on that house.  How soon should I seriously consider buying rather than renting?  If I pay down my student loans rather than deposit money in my 401k, aren't I just throwing away the matching contributions my employer would make? 

It's sad that some people should have money and others shouldn't.  Why can't all the people in this world have  the advantages that I’ve had?  I feel particularly guilty as a lawyer, because I think we're overpaid -- certainly scientists or artists deserve as much as we.  But lawyers defend big corporations and big corporations have a lot of money at stake, so they'll pay a lot of money to defend their interests, so firms make a lot of money, and so they pay associates a lot of money.  There's no comparable market in poetry.

I think it's odd people plan for retirement.  That there comes a point when people plan to stop working.  It's only natural, since most people hate their jobs; so most will want to stop working at the earliest possible second.  But what about people who like their jobs?  I like my job.  Why would I want to retire?  It is true that I am lazy, and at some point it might be nice to work two weeks out of every month rather than all four.  But I couldn't see ever stopping completely.  So why save for retirement if I'll always have a steady stream of income?  One reason is that I might not always feel this way.  Maybe 40 years from now I'll be fed up with work and ready to retire; it would be an awful mistake to have locked myself out of that possibility by not putting away money now.

Money sickens me partly because I've never had to think about it before -- in the sense of having too much or too little.  Now that it's on my radar, it's a sign that my life is changing; that I'm becoming a real adult.  That college and law school are behind me.  I miss that time in my life.

I've been trying to think about places that I could donate money to.  Were I to give to Caltech, I'd want to give to the Music Program, since it was a big part of my life there, and it always needs money.  I also feel tempted to give to SURF because I feel so guilty about how ugly that all turned out.  But it has so many donors already, that it also seems like not as meaningful a use of my money.  For donations should be based on the effect they have on others, rather than how they make me feel. 

Money is perplexing, because it's so tangential to my daily thoughts, but so many people around me are obsessed with it, with what to do with it, and with how to get more of it.  I think what's bothering me is that it is one more instance of how I feel different from the people around me; how I feel bored by the conversations that are out there.  How is it that I'm always bored?  How is that I can't find people with similar interests?  What is wrong with me?  What am I not interested in diffrent things?  Why can I not find people who are interested in the same things as me?  What am I interested in anyway?

I just finished reading a collection of essays on poetry by Dana Gioia called Can Poetry Matter? The collection takes its title from the name of the first essay, which tries to answer that very question.  It goes through and chronicles how poetry has become more and more isolated, not just from popular culture and mass audiences, but even from the "literary class" that takes an interest in classical music, serious literature, jazz, art, etc.  The only people that are reading new poetry these days, says Gioia, are poets in academia, and so this incestuous cycle does no one any favors.  The problem is made worse by the fact that mainstream critics aren't reviewing much of the new poetry being published, and when general interest publications (e.g. the N.Y. Times Book Review) do publish poetry reviews, they spend scant time on any one new book, instead making passing reference to three or four options.  Without critics to identify the best poetry being written, those who might be interested in learning more about poetry have no idea where to begin -- where to find something good -- so they give up.  Add to that the fact that academics are the ones publishing anthologies and tend to self-promote, and much good poetry falls through the cracks or is buried within a mountain of mediocrity. 

Much of that assessment seems to right to me.  The point that resonates most with me is the idea that there's an "intellectual class" of people that represent a perspective audience for poetry, but that aren't finding it.  You're never going to have the average American reading poetry after dinner, but I think there is a subset of a few million people that might be game.  I feel like I'm one of those people, which is why I'm trying to learn more about poetry.  If not me, then who?  I also think a significant problem is that poetry simply isn't being taught to middle and high school kids.  Maybe my educational experience was uniquely bad, but I barely learned anything about poetry in school.  We read a few Walt Whitman poems in 11th grade and some Emily Dickinson.  And there was John Donne talking about sex... err fleas.  Kinky bastard.  There was the occasional Shakespeare; and I remember being subjected to We Real Cool by Gwendolyn Brooks and hating it -- although I suppose I should have appreciated any exposure to anything we got.  (I was a lot more conservative then anyway, so a lot was lost on me.)  But I didn't read any Blake or Longfellow or Eliot or Auden or Byron, etc, etc. 

I think the gap in my poetry education was much more harmful, because it's difficult to pick that stuff up by yourself in your 20s.  Let's face it -- I'm not going to be reading William Blake poems for fun.  Milton; Dante.  Nope.  It's sad, and maybe someday I'll change my mind, but I think it's more likely I'll be struck by a bus than read The Inferno.  Poetry is something you need to read out loud and discuss.  I didn't read many novels in school either, but it's a lot easier to pick up The Great Gatsby and analyze it than The Wasteland. 

Of course, basic reading skills are still a struggle for a substantial percentage of high schoolers, so maybe I'm being unrealisitic.  But it sucks that public high schools aren't equipped with the capability to teach one advanced class per grade level where you really sit down and analyze poems.  Maybe in the end, this is harmless.  It might be lost on even the advanced kids that age anyway.  But I remember some random stuff from high school, things I never had repeated in any class since, so it would have been nice to have at least some fragments of poetry knowledge to fall back on now.

The rest of Gioia essay collection covers a variety of interesting topics.  There are a number of pieces that deal with a single poet -- Robert Bly, Weldon Kees, Ted Kooser, Howard Moss and Robinson Jeffers. There are shorter pieces on T.S. Eliot, Wallace Stevens, and Elizabeth Bishop, and others.  At times the pieces lapse into generalities, and I wish the longer pieces contained more analysis from passages from the poets' work.  But they offer a flavor of each poet's work, and some mentions of other poems which might be a good starting place for future reading.  The shorter pieces (Eliot, Stevens, Bishop) are essentially biographical, which, not knowing much about their lives, I found informative.

There are still other essays like "Notes on the New Formalism," which talks about a movement away from free-verse and bawdy un-metered, non-rhyming poems, to something more "traditional."  Essentially, these new poets are rebelling by reaching back to older forms.  There's an essay on "Business and Poetry" which examines why poets who worked in business didn't mention it in their poetry.  (Eliot = banker; Stevens = insurance lawyer, for example.)  That was one of the more promising topics, but I thought it was one of the weaker essays.  Over-written, redundant, not terribly insightful.  I guess the point is that non-businessman poets don't know anything about business, so don't write about it.  And businessman poets see poetry as a means of escape from daily life, and so don't use material from daily life. 

I should interject here that there was something a little annoying about Gioia's writing style.  There were long parts the book that were fine, but every now and then the writing would bother me.  The sentences were too wordy, or sounded a bit too presumptuous.  Lately, I've tried to embrace the approach that we should write how we speak.  In that vein, I hate seeing the word "moreover" in print.  I have never heard a person utter "moreover" in conversation, but you see it peppered all over people's writing.  I used it a lot myself, but recently it seems unbearably fake to me.  Every time Gioia used the word, I couldn't help editing the sentence to remove the word and make it sound more natural.

All and all, though, it was an interesting read.  Judge Posner (my hero) says that it's important for lawyers to read about non-legal topics and then bring that wide range of knowledge to bear in their legal analysis.  So in that vein, I've been trying to find essay collections to read that cover random topics.  I feel like I learned some very basic things about poetry in general, and a lot of specifics about a few poets in particular.  So it was a worthwhile read.

It's worth briefly noting that Ex-Congressman Ney was sentenced to 30 months in prison.  To me, this is egregiously low.  If ever there were a crime that cries out for a mandatory minimum, being a public official who accepts bribes is it.  Still more amazing is that the government recommended 27 months, and the district judge went a bit higher.  I don't know what the applicable guidelines range is for Ney's offense, but I have to wonder whether not increasing his sentence still higher is "unreasonable" after United States v. Booker.

If there is an argument for leniency, it is that Ney cooperated and might help the Feds further their investigation into other crooked politicians.  But I hate how the terms "cooperation" and "acceptance of responsibility" (to use the lingo from the sentencing guidelines) get thrown around in these types of cases.  Ney didn't wake up one morning and turn himself in.  He waited until he knew he was caught and it was sufficiently certain he would face jail time, then sought to mitigate the damage.  So there's no reason to say he's less morally culpable for cooperating.  That leaves the possibility that we get useful information out of people like Ney, and so we need a carrot to make them cooperate.  But the flip side is that going lighter on these people lessens deterrence to begin with.  If people know that if they're caught, maybe they can cooperate and wind up with 30 months, then they are more likely to risk taking bribes, rather than if they know they will certainly receive 20 years. 

Adjusting sentences like Ney's to encourage cooperation varies the probability of detection.  Arguably imposing a mandatory minimum decreases the probability of detection, since there's less cooperation by those who are caught.  Then you face a choice -- is it better to have a typical sentence of 30 months, with a 20% rate of detection, or a 20 year norm but a rate of detection only 5%?

I don't know.  Obviously a higher rate of detection is good, because it means less corruption in government.  But there's something very unsatisfying about lower sentences to accomplish it.  Particularly because I think the rate of detection could be hard to measure -- so you couldn't really prove to yourself that the lower sentences were actually resulting in a greater percentage of people being caught.  (Plus, even if there is a higher rate of detection, do lower sentences mean that there are more total offenders?  I guess that loops back into the function for rate of detection.)

Anyway - so those are some fragmented thoughts; basically, I think Ney's sentence should have been much, much higher.

I think it's hypocritical for us to criticize the rowdy behavior at Saddam Hussein's execution.  To me, focusing on executing people "with dignity" is misplaced.  It's just a way to justify to ourselves that what we're doing when the state kills something isn't as barbaric as it really is.  A way of sanitizing death to leave our collective hands less dirty.  What would be better about killing him by lethal injection vs. a dignified hanging vs. what actually happened?  I guess you could say that in the first instance, there's more of an appearence of the rule of law.  And what separates execution from murder is the orderly process by which the law assesses someone's guilt, moral culpability, and then imposes punishment.  To say otherwise is to draw too black and white a line, rather than recognizing the shades of grey that do exist.  And appearences matter in law.  For courts to function effectively, not only do judgments have to be impartial, they have to seem impartial.  For otherwise, parties won't be able to plan their affairs around the law, since they won't be fully confident that its results aren't arbitrary.  So you could say that people have less incentives to obey criminal law if they know punishment is imposed randomly and they might get punished, even if innocent.

But I think that all goes to whether a judgment will be entered (punishment imposed) rather than the manner in which it's imposed.  Or at least, most of the concern is at the threshhold level rather than the marginal variations beyond the threshhold. 

There is the additional question of whether there's any political value to killing Hussein -- enough to justify capital punishment in his case, even though it's not morally justified for the typical murderer.  Before I get there, it's worth acknowledging that the leader of a country has the potential for far greater evil than any ordinary criminal (even Ted Bundy or Charles Manson).  So Hussein is among the top 100 or so people alive today -- at least in terms of actual death and harm imposed by him.  Maybe the top __ number is bigger, the only point being that's its quite small in comparison with the number of people alive today, or even the number of murderers.    But there's no bright line rule, for me, that indicates when someone deserves to die by capital punishment.  So rather than draw an arbitrary line, I eschew drawing a line at all -- opting to oppose it in all cases.  In general that's not a great way of going about things, but when it's a matter of life and death, it seems more palatable an approach.

Turning back to whether it's worth killing Hussein for political reasons -- I don't think that justifies capital punishment in his special case either, for similar reasons to another reason why I'm against the death penalty in general actually.  We can't use other people as means to an end.  For the same reason that we can't kill murders to deter others from murdering, I don't think we can kill Hussein (or some other infamous leader) just to send a message to others. 

So I would have opted to sentence him to life in prison.