by John Dalmas
And the legal profession, acting within the justice system, and in legislatures and the Congress, has failed to keep things from getting worse. The popularity of "Dirty Harry," and of vengeance movies, tells us something about the public attitude toward our legal system.
So I'm making some changes before it's too late. Before the people, in final disgust, turn to real-life Dirty Harrys and to gun law.
The Constitution doesn't allow the federal government a whole lot of authority over state courts. Although it gives us more than some might think, and we're taking advantage of every bit of it. So the reforms I'll talk about deal mainly with federal courts and laws and to some extent with those of the individual states. And I invite the American people to demand that their legislatures pass similar legal reforms.
Some attorneys will applaud these reforms, and some will howl. I invite the American people to consider the howling as a reflection of pain in attorneys' bank accounts. Also, keep in mind that many legislators are lawyers, and that some of them will give all sorts of reasons not to reform state law. Don't let them get away with it.
The adversary system has made of our courts a sort of intellectual football field, with the prosecution and the defense declaring war on one another in order to win, and to hell with justice. So we have changed the ground rules to get away from this. These changes will also reduce the seeming endlessness of some trials, as well as outrageous court costs and legal fees.
Also, while a judge may, as before, find a public person guilty of contempt of court, a citizen or a higher court now may charge a judge with contempt of public.
In the new system, the term "guilt" is not used. The jury will find the accused either at fault or not at fault, based on whether they judge that the person committed the illegal act or didn't commit it. Good intentions, ignorance, insanity, have nothing to do with fault.
However, they may modify culpability. In deciding culpability, the main considerations are fault, how reasonably avoidable the act was, what the person's alternatives were, and what his intentions seem to have been.
And the penalty depends on culpability and on what harm, if any, was done to someone.
The new system also considers that individual freedoms are too precious to be sliced and hacked at by people and groups who feel that people must be protected from themselves. Let me restate that. The legal system is no longer the tool of people who feel compelled to control others—people with a compulsion to protect you from yourself whether you like it or not. The Constitution does not authorize the federal government, or the state governments, to impose that kind of control on citizens.
In this regard, I invite you to consider the ninth amendment to the Constitution, which states: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Three examples should be enough to let you see what I mean by keeping the law out of areas of self-harm. If you are eighteen years old or older and want to ride your motorcycle without a helmet, you have the right to. Or if you are less than eighteen and your parents are willing, you have that right. But as a motorcycle operator, you can require your riders to wear one.
And if you want to drive without fastening your seatbelt, that's your right too. Of course, your insurance company may pay less, by a reasonable amount, if you're hurt or killed when not strapped in, but you have the right to ride that way, with this exception. A driver can insist that his or her riders buckle down.
Also, taking harmful drugs is no longer a crime, but laws controlling the dispensing of harmful substances remain in force. And you will soon see new and forceful government action against the importation of illicit drugs. The Coast Guard is the only branch of government authorized by international law to stop, search, and seize vessels at sea for smuggling. A warrant is not, and has never been, required for this, and reasonable force can be used.
However, the Coast Guard has had far too few ships and planes for the job, so I have temporarily transferred the necessary ships, planes, and personnel from the Navy to the Coast Guard.
Almost no states have laws against suicide or attempted suicide, and such laws are voided by this reform. But there is an indirect prohibition against suicide that applies almost everywhere in America: Suicide is severely punished by insurance companies, which generally refuse to pay "death benefits" in cases of suicide.
If someone wishes to end his or her own life, that is their prerogative. To live or not to live, within the individual's ability to do so, is his or her most basic right. And it is a right that supercedes the desire of anyone else—anyone else—that the person remain alive. Even that of a spouse or parent or dependent, and certainly an insurance company.
Yet an insurance company also has the right to protect its shareholders and policy holders from someone who, let us say, might pay $100 for a $100,000 life insurance policy and then kill himself, enriching his beneficiaries. To legalize that would be like granting a license to steal.
So beginning this February first, insurance companies may not refuse payment of indemnities for suicides. But they may reduce payments, based on reasonable actuarial formulas, and considering the premiums paid and the coverage. The intention of this is not to punish suicide, but simply to protect the insurance company and its policy holders and share holders from financial damage.
None of this applies to church prohibitions against suicide. A church may withhold its sacraments from a suicide if it wishes—that's a matter of religious freedom.
Incidentally, if any of you are considering killing yourself, keep in mind that suicide is not reversible. You can't change your mind the next day. And the condition you sought to avoid by suicide may not have seemed nearly so terrible the next day. Or it may be remedied next week! It might be better to get counseling from a pastor or a therapist than to take cyanide. But it's your life.
Unfortunately this speech may inspire a brief flurry of suicides. But more than a few of them would be covert suicides anyway, masquerading as accidental deaths. Others would become tomorrow's drug overdose statistics. Or murders.
Now let's consider the interpretation of law.
A legal precedent is the way some judge in the past interpreted how the law applied to some specific case. In the courtroom, judges and attorneys use legal precedent to guide their arguments and decisions. And while legal precedents are sometimes the product of high wisdom and often of common sense, they may also prove to be foolish, certainly in some of their applications.
And laws, as interpreted with the help of legal precedent, were supposed to be followed exactly. "To the letter." So what happened? People, generally lawyers or with the collusion of lawyers, found ways to sneak around the intent of the law by finding chinks and crannies in the language of the law. They found ways of interpreting the law to circumvent the intention of the law.
Sometimes, when a law or its interpretations were destructive, finding a loophole was the only way an intelligent action could be carried out. But all too often it amounted to cheating, to getting an advantage over others, and the broader welfare be damned. And the person or group who could afford a coven of clever lawyers could operate more freely, even much more freely, than others could. Thus wealth gave one an advantage in legal matters.
There are multimillionaire lawyers around who built their fortunes on this kind of thing. Mostly it wasn't illegal, although sometimes it may have been. You can look at it as gaming, but from a justice point of view it's destructive. And the legal profession didn't treat it as an ethics issue; that would have hurt too many of their bank accounts. So even if you've been an honest, ethical lawyer, you still share responsibility for the tar of public disgust, because you did not take effective action to reform your profession and the legal system.
I really regret saying that, because I've become aware of how hard some of you have worked to reform it.
So now we are requiring all courts, not just federal courts, to apply laws as the la
ws were intended. Where the original intent is not clear from the language of the law, intent will be decided according to the conditions and situations that the law was written to deal with. The intent of the law will always outweigh precedent to the contrary.
Cracks and unintended loopholes will be disregarded. Also, I'm asking the Congress and other legislating bodies to make a clear statement of their intentions in passing any new law, stating those intentions first in terms of broad principles and then of immediate specifics.
The most basic and most important changes in the system will be in the courts. These apply mainly to federal courts, until the people and their legislatures install them in state law. The package you'll be given after this talk describes in what ways this reform affects courts other than federal courts. Now, with that in mind, here are the new ground rules:
The role of the judge is changed considerably. Although the judge has not usually "judged," he or she has weighed too heavily in the courtroom. As a generality, the judge has had more authority than has proved wise for one person to have in court. The judge, like anyone else, has prejudices and blind spots, and today perhaps a snootful of cocaine. In your own studies, you have indicated that cocaine use among judges and attorneys has become a serious problem in justice proceedings.
The judge has been the court executive who guided the proceedings and assessed what the penalty would be. Usually it has been the jury that has judged guilt or innocence, but its decision has had to be within the limits of what the judge says the law really means and how it applies. And at times, judges have rejected a jury's decision of guilt or innocence.
Our changes will help the jury judge the case with greater justice and speed. The jury now will also decide the penalty, within certain guidelines, and penalties will commonly include restitution and amends. And the jury will have the authority to decide the law—to decide for itself how the law applies, within broad legal guidelines, considering the stated or apparent intent of the people who made the law.
The judge is required to explain and to advise the jury on the law. He may point out precedent. But the jury may ignore his advice and reject precedent. The judge has no authority to order them, nor tell them what they should do, nor try to coerce them, in matters of the law. The jury is free to interpret the law according to the jury's own view of its intent and its application to the case, subject as always to appeal.
And very important, the jury will have the right to insist that the court ask certain questions of the accused; and of the principals in a civil suit; and of witnesses. The procedures for doing this are described in the reform package. The jury can even require that the attorneys and the judge answer the jury's questions, where the jury feels it necessary to clarify what the truth is and what justice requires.
Because we are looking for a maximum of justice. We are no longer treating a courtroom as a gaming place for lawyers.
And we are looking toward justice as justice is viewed by the citizens. On the whole, courts dominated by judges have not done an adequate job, and I believe that citizen jurors will do better.
Incidentally, the jury will have another right. If a jury agrees that a law, or part of a law, is ridiculous, or poorly written, or for any reason is a poor law, they can recommend that it be reviewed for possible cancellation, alteration, or replacement. They must judge the case at hand according to the law as it is, but they can recommend that the law be reviewed, saying why. There will be review panels for that purpose.
The most severe penalty will be imprisonment without liberation until judged by a board of citizens as safe for society. And the safety standards will be more stringent than often has been the case. Let me repeat, that is the most severe penalty.
Earlier I mentioned restitution and amends. There you have one of the principles this new system stresses: personal responsibility. I want to emphasize that. Whether convicted of a misdemeanor or a felony, the person convicted is likely to be assessed restitution, to be paid to the individuals or institutions they have harmed. And they can be required to make appropriate amends to society. If nothing else, their amends will include court costs.
This is not a matter of additional punishment. It is a matter of being responsible for the damage one has done, as judged by a jury of citizens.
Which brings up a related matter. If a crime so attracts publishers or film makers that they want to buy the book rights or film rights from the criminal, the proceeds that normally would go to the criminal as author or coauthor or story source will go first toward restitution to the injured, and if any is left, it will be paid to the court as an amends to society. The agent who handles it can of course receive a reasonable commission, and any writer who assists with the manuscript or script can receive a reasonable fee. But kickbacks will be treated as felonies.
And now about civil law.
This nation has a history of lawsuits and even criminal charges being filed which proved to be clearly unfounded. Sometimes suits have been filed to harass or defame someone. Sometimes they have been made simply for publicity. And frequently they have been filed in hopes of getting an out-of-court settlement from someone who wants to avoid the time, expense, and publicity of a court case. From now on, filing a clearly unfounded case will be a good way for a lawyer to get himself tried on felony charges, fined, disbarred, and possibly imprisoned.
Which brings us to what may be the most disgraceful area in the American legal system: liability claims. Some decades ago, I recall a case where three teenage boys saw a tractor in a farm field in Kansas. The farmer had driven home in his pickup truck to eat lunch. The boys went out into the field, trespassing, started the tractor and drove off with it. One fell off and was run over, suffering severe injuries.
So—His parents sued the farmer!
And the court did what? Did they charge the boys with trespassing? No. With illegally driving the tractor? No. With reckless driving? No. They awarded the injured boy's family half a million dollars. In 1960, that was equivalent to about two million of last year's dollars.
Say that their lawyer got thirty percent. That happens in liability claims. So let's say that after taxes the family itself ended up with what amounted to one million of last year's dollars. Invested through a reputable brokerage firm, that could easily provide an income of $80,000 a year. So here was a kid who broke the law, and as a result his family had an income far far greater than the average family's.
Here was a teenage boy who not only was not held responsible for his own actions, his own foolishness and heedlessness, his own lawbreaking, but who was rewarded for it!
I won't tell you what I think, and what most Americans think, of the lawyer. Or the judge. Or the court. Can the legal profession possibly interpret this as justice? One can hardly avoid wondering if the judge received a kickback from the lawyer, who morally smells like a profiteering criminal.
Perhaps more remarkable was the case of the man who swallowed, or half swallowed—an office staple puller! It's not easy to half-swallow a staple puller. It's not easy to imagine a grown man putting one in his mouth! He very nearly choked to death, and surgery was necessary to remove it. Then, with the help of a lawyer who deserved to be put in jail, he—Sued the manufacturer because the staple puller did not have the warning: harmful if swallowed! And more incredible yet, he was awarded $400,000 damages! I don't know what the lawyer's cut was of that award. Twenty percent? Thirty?
A large majority of Americans consider such legal actions outrageous and shameful. Your own public surveys have established that unequivocally. Yet apparently the American Bar Association considers such actions ethical. Right? Because through its membership, it has had the necessary power to end them, and hasn't done it. However you might rationalize this, it seems clear that the fat bank account has outweighed ethical considerations in your organization.
And whose money is given away in these outrageous grants? The insurance company's money? In a way, yes. But really, it was everyone's money who bought in
surance, which is most families, because their premiums had to be made high enough to pay for the judicial stupidity, the judicial irresponsibility, the you-help-me-get-mine-and-I'll-help-you-get-yours greed that resulted in such awards. The many many such cases cost everyone who bought insurance a great deal of money. Everyone except the gougers.
And worst of all, it degraded public confidence and helped make the law and the courts contemptible in the eyes of many Americans.
Of course, many liability suits are proper and just. People do injure others, intentionally or through ignorance or carelessness. In such cases the person being sued should be held accountable for their actions, and damages assessed which are just and reasonable. But it is not acceptable that people be rewarded for their own carelessness, their own stupidity, sometimes their own avarice, even their own trespassing, at the expense of the rest of us.
So we are finally starting to get rid of these expensive comedy shows. Damage awards will depend on actual damage, actual liability, and reasonable legal fees. And if cases are brought which are as flagrantly predatory as the examples I mentioned, the case will not only be thrown out; the lawyer will be disbarred and the plaintiffs quite possibly fined.
Only actual damages will be rewarded, not punitive damages. I'll repeat that. Only actual damages will be rewarded, not punitive damages. If punishment is appropriate, then instead of punishing with punitive damages, criminal charges will be filed and punishment carried out that way.
The majority of liability cases fall under state instead of federal law. But this legal reform package has considerably extended what cases can be tried in federal courts. And it makes certain new requirements of state and local courts. As a matter of fact, we have gone to the very limits of constitutionality on this. But the federal government has just so much authority and no more. So if you, both lawyers and citizens, like what I've said here today, then use all the pressure necessary to get similar reforms written into state law. If your local legislator gives you alibis instead of action, then find someone who will give you action and elect him to the legislature.