The new woke legal policies introduced in the 1960s and their consequences

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How did America get from the America of the 1950's to the America of today? I think Thomas Sowell’s book “The Vision of the Anointed” gives a lot of insight into this question.

In Chapter 2 of the book Dr. Sowell talks about the three liberal programs of the 1960s that failed:

1. The War on Poverty

2. Woke legal policies

3. Sex education

His term “anointed” is a sarcastic term referring to the liberal leftist intellectual elites dominating in our universities and upper echelons of our society who believe they are intellectually superior to everyone, know what is best for everyone, and have so much power and influence.

Following is what he has to say about the new woke legal policies introduced in the 1960s:

pp.21 - 28

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Criminal Justice

Like so many negative social trends, soaring crime rates began in the 1960's, amid glowing optimism about how much better things could be if the traditional beliefs of the many were replaced by the special new insights of the few. In the case of criminal justice, however, the policy changes did not originate so much in legislation as in judicial and administrative rulings and policies. But the zeitgeist alone did not initiate the changing policies, which depended on specific people doing specific things. Among the key people whose words and actions set the tone for changes in the criminal justice system in the 1960s were the chief justice of the U.S Supreme Court, the attorney general of the United States, and the chief judge of the Circuit Court of Appeals for the District of Columbia, then as now regarded as de facto the second highest court in the land. By name they were, respectively, Earl Warren, Ramsey Clark, and David L. Bazelon. What was the problem or “crisis” they were attempting to “solve”?

STAGE 1. THE ‘CRISIS”: Although Chief Judge Bazelon said in 1960 that we need all the help we can get from modern behavioral scientists in dealing with the criminal law, the cold facts suggest no such desperation or crisis. Since the most reliable long-term data are on murder, what was the murder rate at that point? The number of murders committed in the United States in 1960 was less than in 1950, 1940, or 1930 — even though the population was growing over those decades and murders in the two new states of Hawaii and Alaska were counted in the national statistics for the first time in 1960. The murder rate, in proportion to population, was in 1960 just under half of what it had been in 1934.

As Judge Bazelon saw the criminal justice system in 1960, the problem was not with “the so-called criminal population” but with society, whose “need to punish” was a “primitive urge” that was “highly irrational” — indeed a “deep childish fear that with any reduction in punishment, multitudes would run amuck.” It was this “vindictiveness,” this “irrationality” of “notions and practices regarding punishment” that had to be corrected. The criminal “is like us, only somewhat weaker,” according to Judge Bazelon, and “needs help if he is going to bring out the good in himself and restrain the bad.” Society is indeed guilty of “creating this special class of human beings,” by its “social failure” for which “the criminal serves as a scapegoat.” Punishment is itself a “dehumanizing process” and a “social branding” which only promotes more crime. Since criminals “have a special problem and need special help,” Judge Bazelon argued for “psychiatric treatment” with “new sophisticated techniques,” and asked:

Would it really be the end of the world if all jails were turned into hospitals or rehabilitation centers?

Chief Judge Bazelon’s views were not the isolated opinions of one man but expressed a widespread vision among the anointed, many of whom lionized him for such statements. The same therapeutic vision was still apparent more than a quarter of a century later, when Supreme Court Justice William J. Brennan referred to the “etiology of crime.” for which he called upon “psychiatrists and psychologists,” as well as “experts in the behavior sciences,” for help. Brennan’s long-time colleague on the Supreme Court, Justice William O. Douglas, likewise took the therapeutic approach:

Rehabilitation of criminals has seldom been attempted. Killing them or locking them up is the tried-and-true ancient method. Why not turn our faces toward rehabilitation?

The therapeutic vision also permeated the writings and speeches of President Lyndon Johnson’s attorney general, Ramsey Clark:

Rehabilitation must be the goal of modern corrections. Every other consideration must be subordinated to it. To rehabilitate is to give health, freedom from drugs and alcohol, to provide education, vocational training, understanding and the ability to contribute to society.

Rehabilitation means the purpose of law is justice — and that as a generous people we wish to give every individual his chance for fulfillment. The theory of rehabilitation is based on the belief that healthy, rational people will not injure others, that they will understand that the individual and his society are best served by conduct that does not inflict injury, and that a just society has the ability to provide health and purpose and opportunity for all its citizens. Rehabilitated, an individual will not have the capacity — cannot bring himself — to injure another or take or destroy property.

With Attorney General Clark, as with Chief Judge Bazelon and others, the problem was with the benighted public and its outdated attitudes. Society imposes long sentence terms “because we are angry,” according to Clark, but “this will not reduce crime.” He said:”If it is public safety we are concerned about, the question is how many persons convicted of crimes can be rehabilitated, not how they should be locked up. Again, it is necessary to emphasize that these are not the isolated opinions of one man. Ramsey Clark’s book, Crime in America, was widely praised among the opinion elites. New York Times columnist Tom Wicker, for example, called Clark “an awesomely knowledgeable professional” and praised his “generosity and understanding” as well as his “courage and persistence and eloquence.” The Saturday Review called Crime in America one of the best books written on violence in America. Similar praise appeared in Time magazine and in the New Republic. As far away as London, the Times Literary Supplement said in its review of Crime in America that no man has “done more to state the problem and light the way to improvement than Ramsey Clark.” More importantly, the attorney general, Chief Judge Bazelon, and justices of the Supreme Court were not simply people whose words received a large and favorable public notice from opinion-making elites. They were people in a position to act.

STAGE 2. “THE SOLUTION”: A series of landmark Supreme Court decisions in the 1960's changed the course of criminal justice in the United States. Mapp v. Ohio (1961), Escobido v. Illinois (1964), and Miranda v. Ohio (1966) successively expanded the rights of criminals in the custody of the police by making their confessions invalid if the procedures specified by the courts were not followed in detail by the police. Gideon v. Wainwright (1963) required states to provide free attorneys to criminal defendants, subject to the threat that their convictions would be overturned, even if guilt was unquestioned, when such attorneys were not provided. In California, even when state-supplied attorneys were supplied, if these attorney’ defense strategies were second-guessed by appellate judges and considered inadequate, convictions could be overturned on grounds of denial of the constitutional right to counsel.

Although the U.S. Supreme Court began this judicial revolution in criminal law in the 1960s, even earlier Chief Judge Bazelon had expanded the scope of the “insanity” defense in the landmark case of Durham v. United States (1954) and he continued to lead the D.C. Circuit Court of Appeals toward more expansive views of criminals’ rights. In addition, courts across the land involved themselves more and more in the administration of prisons, prescribing better living conditions and imposing on the prison system a duty to provide prisoners with access to law books, in order to prepare appeals of their convictions. Moreover, sentences were less often imposed and tended to be of shorter duration.

In short, the vision of the anointed triumphed in the criminal justice system. The assumptions underlying its actions were the same as elsewhere. Sweeping presumptions underlying its actions about the irrationality and mean-spiritedness of the public were made without evidence or a sense of need for evidence. Conversely, the validity and applicability of the beliefs as “experts” were taken as axiomatic. Judge Bazelon, for example, referred to the insanity defense as “merely one way of welcoming the psychiatrist into the courtroom.” Whatever the merits or demerits of this approach, it fulfilled the essential requirements of the vision of the anointed: It established that the anointed and the benighted were on vastly different moral and intellectual planes and it justified taking decisions out of the hands of those who passed the existing laws, in response to the voting public, and put those decisions in the hands of judges responsive to those with “expertise”. Moreover, it put the burden of proof on others. As Judge Bazelon put it, “in the absence of decisive empirical data,” he was prepared to experiment. There was no suggestion of what empirical data should be used to test the success of that experiment, either relatively or relative to the approach discarded with such disdain. Although judges took the lead in this revolution in criminal justice, they were seconded by those in politics and in the media who shared the prevailing vision. President Lyndon Johnson saw social programs as the real way to fight crime. As quoted in the New York Times:

“I don’t know why some people sit idly by and are willing to take the more expensive route — the delinquency route, the jail route, the penitentiary route,” he asserted.

“It takes more of our money to take care of a convict in a penitentiary than it does to prepare a boy to be a good, taxpaying citizen who can read and write,” he said ....

Similar views were expressed by 1968 Democratic vice-presidential candidate Edmund Muskie. Responding to the law and order issues raised by his opponents in the election campaign, Senator Muskie said:

But you can’t have law and order based on ignorance .... You’ve got to build it by education, enlightenment and opportunity. That’s the way to make a society safe.

These views did not pass unchallenged, though the legal changes became “the law of the land.” largely by judicial rather than legislative process. On the Supreme Court itself, there were bitter dissents from the continued expansions — or creations — of criminals rights.

The Moranda decision of 1966, which climaxed the judicial revolution in criminal law, led to this scene in the Supreme Court:

Justice Harlan, his face flushed and his voice faltering with emotion, denounced the decision as “dangerous experimentation” at a time of “high crime rate that is a matter of growing concern.”

He said it was a “new doctrine” without substantial precedent, reflecting a balance in favor of the accused. Justice White said:

“In some unknown number of cases the Court’s rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him.

“As a consequence, there will not be a gain, but a loss, in human dignity.”

Such dissents were brushed aside and outcries from the public and from law enforcement officials were dismissed. At a 1965 judicial conference where a former police commissioner of New York City complained about the trend of the Supreme Court’s decisions on criminal law, his concerns were immediately met with sarcastic ridicule by a law professor who asked, “I wonder what rights we’d have left if we always yielded to police hysteria.” According to the New York Times account, Justice William J. Brennan and Chief Justice Earl Warren sat “stony-faced” during the police commissioner’s statements, but then “frequently roared with laughter” as the law-professor poured scorn and derision on those statements, which were characterized as “simplistic, narrow-minded and politically expedient.” The benighted were simply not to be taken seriously by the anointed.

Had anyone been seriously interested in testing the opposing theories of crime empirically, those theories were ideally suited for such testing, since each theory led to conclusions which were not only logically consistent with its own premises but were virtually inescapable, given their respective premises. Moreover, these conclusions were clearly distinguishable empirically and data were readily available.

In the prevailing vision of the anointed, emphasis on punishment was mistaken when what was needed were therapeutic alternatives to punishment, social programs to get at the “root causes” of crime, and more rights for those accused and convicted of crimes, so as to establish that the law was fair and worthy of respect, which respect would then be an ingredient in more law-abiding behavior by those otherwise alienated from society. By contrast, the traditional view would lead one to expect a rising crime rate after the changes of the 1960s. If punishment deters, as the traditionalists believed, then the reduction in imprisonment that occurred in the 1960s would tend to produce more crime. But if imprisonment itself, exacerbated the crime problem, as Judge Bazelon, Ramsey Clark, and numerous others with the vision of the anointed claimed, then this reduction in imprisonment would tend to reduce crime. Similarly, if social programs for the poor, minorities, and for the mentally disturbed were needed to get at the “root causes” of crime, as the anointed claimed, then the vast and unprecedented expansion of such programs during the 1960s should have reduced the crime rate. The logical implications of each vision were quite clear. All that was needed was empirical evidence.

STAGE 3. THE RESULTS: Crime rates skyrocketed. Murder rates shot up until the murder rate in 1974 was more than twice as high as in 1961. Between 1960 and 1976, a citizen’s chances of becoming a victim of a major violent crime tripled. The number of policemen killed also tripled during the decade of the 1960s. Young criminals, who had been especially favored by the new solicitude, became especially violent. The arrest rate of juveniles for murder more than tripled between 1965 and 1990, even allowing for changes in population size.

As in other areas, such evidence has made little or no difference in the vision of the anointed, except to spur them on to new feats of ingenuity in interpretation.

STAGE 4. THE RESPONSE: Since criminal law changes nor any other social changes are likely to produce truly instantaneous effects, there was a brief period during which no change in the crime rate was discernable — and this momentary lull provided occasions for expressions of much disdain toward those who had predicted that the new criminal justice practices would lead to higher crime rates. Just two months after the Miranda decision in 1966, the New York Times declared that “the gloomy predictions of its critics have been happily unrealized”. However, once the crime rates had clearly begun to rise in the wake of this and many other judicial changes designed to reduce them, the tactics of the proponents of those innovations shifted. Among the early responses to soaring crime rates, in the wake of policies designed to reduce them, were denials that crimes were in fact more frequent. Increased reporting of crime or better collection of data was held responsible for the upsurge in the official statistics. However, as James Q. Wilson put it, by 1970, enough members of the liberal audience had had their typewriters stolen to make it difficult to deny the existence of a crime wave. Moreover, even in the absence of accumulating personal experience, it was difficult to believe that soaring murder statistics reflected simply better record keeping, since it had always been hard to ignore a dead body.

An alternative to denying rising crime rates was to make it socially unacceptable to talk about it, by equating discussions of “law and order” with racism, since it was well known that crime rates were higher among blacks. “Law and Order” was “an inflammatory statement,” according to the well-known psychiatrist Karl Menninger. “What it really means, I’m afraid, is that we should all go out and find the niggers and beat them up.”

Later in Chapter 6 Dr. Sowell has more to say on this topic. The following is from pages 153 -162:

For at least 200 years, those with the vison of the anointed have been claiming that criminals have been misunderstood by the public and mistreated by the law. A product of social circumstances and societal failures, criminals should not be punished but rehabilitated, according to this view, found in such eighteenth-century figures as Condorcet and Godwin. In addition to questioning the morality of punishing people for circumstances beyond their control, the anointed tend to believe that punishment does not work but that rehabilitation does. The belief is part of a wider pattern among the anointed of emphasizing dispositions rather than incentives, whether discussing criminals, international diplomacy, or child rearing.

The conclusions of those with this vision are as logical as the opposite conclusions of those with the tragic vision. It is the imperviousness of the anointed to any argument or evidence, and their readiness to dismiss and condemn those with different views, which have made criminals mascots symbolizing the superiority of the anointed. An episode in San Jose, California, illustrates this mind-set. The federally funded Alternatives to Incarceration program sent selected imprisoned criminals to colleges to complete their sentences there instead of behind bars. After a series of rapes at San Jose State University, the city’s police chief discovered that imprisoned rapists had been released to that institution and that “convicted felons routinely stalked women in dark streets in the vicinity of the university in downtown San Jose.” What is revealing is the response when he expressed his concern to the director of this particular project:

When I complained, the project director said the “clients” were screened and that California had declared it an exemplary program. Actually, we later found out that the program screened applicants only on the basis of academic scores. Federal rules prevented consideration of their criminal records. And California had declared the program exemplary only because it submitted quarterly reports on time.

When my complaints about the program became public, I was censured by the students and faculty and advised by my superiors in city hall to go easy. After all, this was an exemplary, federally funded program to reduce recidivism.

Note that it was not considered sufficient for the anointed to disagree with the police chief’s assessment of the danger; it was necessary to condemn him for expressing such concerns. Moreover, the intentions of the program — to reduce recidivism — were considered weighty in themselves. Then, a few months later, came the tragic denouement when the police “arrested an honor student in the program for brutally torturing, raping, and murdering two women near the university.” He was “articulate and the project had often used him to show how wonderful it was that bright people could get a college education instead of languishing in prison.” Nor was this an isolated failure. During the entire decade of this program, not one “client” actually graduated from the university but a number were arrested for crimes against women.

The point here is not simply that some people were mistaken in their beliefs and hopes for this particular program, but that they barricaded themselves against all beliefs to the contrary and morally condemned those who expressed such beliefs. It is this pattern which has been all too characteristic of the anointed, on this and other issues, over a long span of time. Moreover, such patterns can be found among the anointed from the local level to the Supreme Court of the United States.

Most of the Supreme Court’s landmark decisions expanding — or creating — “rights” for criminals occurred during the 1960s, but another landmark decision of national importance originated earlier in the Circuit Court of Appeals for the District of Columbia, a court aptly characterized as having “a more-liberal-than-thou posture” that made it “the darling of the Washington Post.” This was the judge David L. Bazelon’s 1954 decision expanding the “insanity” defense in criminal law, an expansion which reverberated far beyond the legal jurisdiction of this particular court, becoming by imitation in other jurisdictions the law of the land. It was thus not simply the view of one judge or of one court. It was an expression of the vision of the anointed.

Before Judge Bazelon’s decision, American courts tended to follow the same legal principle used in British law in the nineteenth-century McNaughten case:

... the jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that, to establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as to not know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong.

This was not good enough for Chief Judge Bazelon. In the Durham decision of 1954, he repudiated the McNaughten test by shifting the burden of proof to the prosecution, when the defense claimed that the defendant was not guilty by reason of insanity, and by allowing much more expansive psychiatric speculations to be introduced as evidence in the trial. In his decision in the Durham case, overturning the burglary conviction of a man with a long history of crimes — including writing bad checks, which hardly suggests a lack of reasoning ability — Judge Bazelon spoke of “the science of psychiatry” and “the science of psychology” as reasons for letting speculations from these fields deflect the criminal punishments that would otherwise fall on the defendant. No longer did the defendant have to be insane. It was enough that the accused “suffered form a diseased or defective mental condition.”

The nebulous notion of “defective mental condition” evolved in later cases into saying that someone “suffering from an abnormal condition of mind” was not responsible for his crime. To follow this logic, the more horrible the crime, the further the criminal departed from civilized norms and by definition the more “abnormal” his mental condition. By such reasoning, every violation of law should be excused. But of course nothing as straightforward s this was proposed. Instead, the speculations of psychiatrists and psychologists were accepted as “science” and criminals acquitted whenever these “scientists” raised sufficient doubts in the minds of jurors. It was not necessary to convince the jury that the defendant was insane or even had an abnormal mental condition, because the burden of proof was on the prosecution and insanity was no longer necessary. Congressional legislation in 1984 shifted the burden of proof back to defense attorneys who claimed that their clients were suffering from mental defects, and judicial interpretations are still evolving. But the decisive turn in criminal justice was abandoning a straightforward standard for nebulous speculations, the later requiring vastly more knowledge than anyone possesses, as so often happens in the vision of the anointed.

Despite much talk about “science” in discussions of psychiatric and psychological speculations — usually speculations about people who were never patients of those making sweeping statements about their mental condition as of the time of a crime that the speculators never witnessed — the key scientific procedure of empirical verification has not been merely lacking but totally ignored. A psychiatrist or psychologist may testify hundreds of times as an “expert witness” in criminal cases without once being challenged as to the consequences of his previous testimony that turned criminals loose into the community. His “expertise” is never put to the crucial test of a record as to how often he has been wrong — and at what cost in money, violence, and lies. As in so many other areas, the word “science” is used as a substitute for logic and evidence. In short, the essence of science is ignored in favor of its appearance.

Many have claimed that the “insanity” defense is not a serious problem because it is used in only a fraction of criminal cases, and used successfully in a smaller fraction. This understates its full impact as another factor delaying trials and providing grounds for appeals after conviction in an already overburdened court system. Moreover, the demoralization of the public, as it sees horrible crimes go unpunished and violent criminals turned loose again in their midst because of psychiatrist’s speculations, is not a small consideration. Riots broke out in San Francisco after a multiple murderer was let off with a lenient sentence because of speculation that his eating “Twinkies” might have made him more excitable. But, whether or not public outrage takes this form or some other forms, there are numerous signs of a loss of confidence in the courts and in the ability of the society to protect the public from criminals and other antisocial individuals who have become mascots of judges.

It is not only psychiatric testimony which tempts judges into decisions which presuppose far more knowledge than anyone has ever possessed. Ordinary petty criminals have learned how to manipulate the arrogant gullibility of judges. A series in the Washington Post in 1994 included this vignette of one of many court appearances by a woman with a long history of petty crimes:

Ross Lee had chosen her clothes carefully when she appeared two months earlier before Commissioner John Treanor on Nov. 13, 1990. She wanted to look as poor as possible to draw his sympathy.

She had worn an ill-fitting winter coat, gray wool overalls and a white wool hat pulled back to show her graying hair. She had removed her upper dental plate, giving her a toothless look when she smiled. “My homey look,” she called it. No lipstick. No earrings. No nothing!”

The net result of all this was a suspended sentence for a woman with a lifelong history of shoplifting (which she had taught her children) and drug addiction, the mother of children and grandchildren who had been in prison. The fundamental problem was not that the judge was taken in but that he imagined himself capable of knowing enough to disregard the penalties of the law and play Solomon or social worker instead. Although the reporter who covered the story was well aware of how phoney the act was — the woman asked him, right in the courtroom, “Was I good?” and was pleased when he said “Yes” — nevertheless the series blamed “society.” The first story in the series said of Rosa Lee: “Her life spans a half-century of hardship in blighted neighborhoods not far from the majestic buildings where policy-makers have largely failed in periodic efforts to break the cycle of poverty that has trapped her and so many other Americans for so long.”

Criminals are the most obvious, and the most resented, of those for whose benefit judges have stretched the law, in an attempt to achieve the cosmic justice of compensation for preexisting disadvantages. Chief Justice Bazelon, who played such a key role in the evolution of criminal law, was quite clear that the kind of legal principles he advocated were designed to “compensate for the disparities that produce unequal access to constitutional rights” among people “stunted by many circumstances, including the accident of birth” and to “give the stunted a box to stand on to reach our own eye level.” Convinced that “poverty is the root cause of crime,” Judge Bazelon expressed a widespread view of the 1960s, and a long-standing assumption of the anointed, that sufficient knowledge already existed, when he said:

The circumstances that lead some of these people to crime are no mystery. They are born into families struggling to survive — if they have families at all. They are raised in deteriorating, overcrowded housing. They lack adequate nutrition and health care. They are subjected to prejudice and educated in unresponsive schools. They are denied the sense of order, purpose, and self-esteem that makes law-abiding citizens. With nothing to preserve and nothing to lose, they turn to crime for economic survival, a sense of excitement and accomplishment, and an outlet for frustration, desperation, and rage.

That most people born into poverty did not become criminals, and that people born in more fortunate circumstances sometimes did, was acknowledged by Judge Bazelon, but this acknowledgment made no real difference in his conclusions or his judicial decisions. Correlation was causation.

Such reasoning might make sense if human beings were born into the world already civilized, so that some special explanation was necessary as to why they later engaged in barbaric behavior. But when everyone is born into the world today as uncivilized as the barbarians of ancient times, there is nothing mysterious about the later behavior of those whose parents did not bother to civilize them. Nor is it surprising that such irresponsible parents have not developed, either in themselves or in their children, the skills, attitudes, and discipline necessary to rise out of poverty. At the very least, the direction of causation cannot automatically be assumed to be from poverty to crime, especially after decades in which massive government programs to alleviate poverty have seen crime rising to new heights.

The isolated views of one judge would hardly be worth noticing, except that (1) such views were echoed throughout the media, which lionized Judge Bazelon, (2) the U.S. Supreme Court made similar views “the law of the land” in its decisions during the 1960s and 1970s, and (3) both federal and state courts across the country went on similar judicial adventures, interpreting laws to mean whatever they wished them to mean, typically in consonance with the vision of the anointed. Perhaps the most dramatic examples came from the California Supreme Court when Rose Bird was its chief justice.

In more than 60 consecutive death penalty cases — every such case to reach the California Supreme Court during her tenure — Chief Justice Bird voted to overturn the penalty, on grounds that the defendant had not had a fair trial as required by the Constitution. Either there was not a single judge in the entire state of California who ever gave a murderer a fair trial or else Rose Bird was simply using this claim as a pretense to enforce her own personal opposition to the death penalty. Since the state constitution explicitly stated that trial verdicts were not to be overturned by appellate courts unless the legal errors in those trials resulted in a real “miscarriage of justice,” Chief Justice Bird’s votes implied that these 60 consecutive trials not only contained technical legal error, but also that these errors were of such magnitude and nature that they created a miscarriage of justice in every case. The initial implausibility of this happening 60 consecutive times becomes even more incredible afer a look at the particulars of some of these cases.

In one of the cases that came before the Bird court, a man went to a store not only to commit an armed robbery but also with a list of people who worked at the store whom he planned to kill. He proceeded methodically down his list, murdering the workers with shotgun blasts and pausing to reload, so that premeditation was not an issue. Yet, because the trial judge’s instructions to the jury failed to mention premeditation as a requirement for a first-degree murder conviction, Chief Justice Bird voted to overturn the death penalty. Death penalties in other premeditated murder trials were likewise reversed by the California Supreme Court on the same grounds. Because some judges may not have wanted to insult the jurors’ intelligence by discussing premeditation in cases where it was so blatantly obvious, this technicality was taken as a sufficient reason for declaring that the murder was a victim of a miscarriage of justice.

Another murderer had his death penalty overturned on grounds that his attorney had failed to make an insanity defense. The California Supreme Court did not claim that the murderer was in fact insane, but simply second-guessed the defense attorney’s strategy and pronounced it inadequate, thereby making this a de facto denial of the defendant’s right to counsel. Here again, we see the insanity defense having an impact well beyond the cases in which it is attempted or sustained. Similar ingenuity was used by Rose Bird to vote against every death penalty that came before her.

Again, the idiosyncracies of one judge or even one court are significant primarily because they are indicative of the zeitgeist among elites. When Rose Bird’s reelection was challenged in 1986, much of the national media, as well as the California media, sprang to her defense. New York Times columnist Tom Wicker defended her invariable vote to overturn death penalties by claiming that “in every single instance of a death-penalty reversal, the Bird court has found a constitutional infirmity” — as if the court could possibly have claimed anything else, regardless of how tenuous that claim was. The death penalty issues were an “emotional issue,” according to Wicker, using the standard term for any principle of concern to the benighted, while Bird’s position on the side of the anointed was a matter of principle — “the rule of law,” no less. The Los Angeles Times likewise claimed hat the Bird court “reversed death sentences because of errors they found in the records in the courts below” — that they were trying to “enforce justice even when it is unpopular.”A New York Times editorial claimed that Rose Bird’s opponents were “politicizing the judiciary” — not that it was she who had turned the court into an enforcer of her own ideology, rather than the law. Columnist Anthony Lewis depicted the campaign against Bird as an attack on “an independent judiciary.” Others in the media chimed in with support for Chief Justice Bird, usually not mentioning the number of consecutive reversals or the egregious specifics of the court’s straining after technicalities, in defiance of the constitutional requirement that a substantive miscarriage of justice was necessary for a reversal.

That Rose Bird was a symbol of the anointed was further demonstrated in the judicial elections of 1986. Although no California Supreme Court justice had ever lost an election before, Rose Bird was defeated at the polls in 56 out of 58 counties, finding such electoral support as she had concentrated in bastions of the anointed. She carried San Francisco County with 65 percent of the vote and Alameda County — home of the University of California at Berkeley — with 51 percent. The closest she came to a majority elsewhere was 45 percent of the vote in Santa Cruz County, home of the “politically correct” University of California at Santa Cruz, and the same percentage of the vote in Marin County, an affluent and trendy suburb of San Francisco. In character to the end, in her last week as chief justice, Rose Bird voted in favor of paroling a cop-killer featured in the book and movie The Onion Field.

Those for whose benefit the law is stretched by judges — the mascots — include not only criminals but also a wide range of groups looked on with disfavor by others, whether for valid or invalid reasons. That such people would be adopted as mascots by those with the prevailing vision is completely consistent with the role in which the anointed cast themselves, as being nobler and wiser than others. Anyone can condemn criminals, so there is no distinction in it. But to come up with rationales, rights, and “solutions” expressing solicitude for criminals is far more consistent with being one of the anointed with special insights. For similar reasons all sorts of other groups are depicted as victims whom the anointed are to rescue from the benighted.

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Many people have the idea that the cause of crime is poverty. I ask myself, “Why do you think they have that idea?” Suppose I were to ask such a person the question: Why do you think that the cause of crime is poverty? How do I think he would answer me?” Answer: I think he would say, “I don’t know why I think that. I just have that idea. It is a common assumption.” I then say to myself: Do you disagree with that assumption? If so, why do you disagree with it? I think to myself, “Hmmm. I am not sure. Why do I disagree with it?” After some hesitation I say to myself, “Perhaps if a person were starving and had no money he might be tempted to steal food or money. However, for thousands of years in civilizations everywhere in the world the masses of mankind have been peasants or slaves who have lived in the most rudimentary dwellings without running water, heat, electricity or any of the modern conveniences — and food for them was relatively expensive due to the manual methods required to produce it. By our modern standards they have been very, very poor. Even today there are people in rural areas of Asia and Africa who are without electricity, indoor plumbing, or heating and cook their food on a primitive outdoor wood fire. Yet most people throughout history have not resorted to crime due to their hard lives. They have been honest, law-abiding citizens. Even the poorest here in America live like kings compared to the way people have lived in past centuries or to the way the poor in slums in countries in like India and the Phillippines still do live. History shows that poverty itself does not cause crime. Honest people deal with hardship. They don’t go to crime.”

Are there people here in America who are hungry? If there are, it is their own fault. With the low cost of foods like rice and beans here in America, one could live on a diet of rice and beans for a few cents a day. See How cheaply can one eat?

Let me ask myself this question: Would I ever steal anything from anyone? Answer: No. Question: Why do I think I would never steal anything from anyone? Answer: I know it would be wrong. I have always known that from my earliest childhood. Another question: Would you ever do anyone any harm? Answer: I don’t think so. Not unless I were in a state of great rage, as in some fight. Question: Why not? Answer: Because it would be wrong. Another question: How about lying to someone? Have you ever lied to anyone? Answer: Well, I don’t remember any particular incidents where I have lied. I may have deceived a bit to spare someone’s feelings. Question: Why do you think you are the way you are? Answer: I don’t know. I have just always been this way. Perhaps it is partially due to the Bible. I take the Bible seriously. The Bible says these things are wrong. Question: Why do you think people go to a life of crime? Answer: I think it is likely from the influence of family or friends and it is an easy way of getting money.

Let us consider this question a little further.

Def. Conscience. an inner feeling or voice viewed as acting as a guide to the rightness or wrongness of one's behavior. "he had a guilty conscience about his desires"

Similar: sense of right and wrong, sense of right, moral sense, still small voice, inner voice, voice within, morals, standards, values, principles, ethics, creed, beliefs, compunction, scruples, qualms

What kind of things do you think might destroy a person’s conscience?

I would suggest the following answer: The first act that crosses the moral barrier. After that first act, crossing the barrier becomes easier and easier.

The modern liberal Left has been trying to break down the sexual moral barrier for many years now — going at least as far back as the sexual revolution of the1960s hippie movement. Once one moral barrier is broken down it is easy to move on to other moral barriers. Lying, stealing, and murder are just some of them. It is all about the destruction of conscience.

Then the Left talks about reforming criminals. That involves putting a conscience back in them. That is not so easy. Once destroyed, conscience is not easily restored. That involves honest repentance. That doesn’t happen often. People don’t like to admit they have been wrong.

All of this leads into spiritual territory. The basic problem here is a spiritual one. And an atheistic Left is not likely to be receptive to that cure.

4 Nov 2023