I did not feel like much a sovereign when I walked out of the polling place this morning. No, I felt as though I’d just been tossed from a fast-moving car after a six billion dollar – the sum spent on political advertisements this year – joy ride. Oh, yes, I cast a ballot in favor of a presidential candidate. I also voted in the race to fill a seat in the United States Senate. And, true to many years’ custom, I wrote the name "Clarence Darrow" into the slot for House of Representatives: although the famous American trial lawyer has been dead for many years, I at least have the pleasure of knowing what I’ll get in exchange for that vote.
But the act of voting itself has the taste of a stale communion wafer: is this the body and blood of popular sovereignty? Audacity of hope unfulfilled versus Clark Kent’s revenge hardly seemed like a choice.
I know the theory. The act of voting is a form of civic participation. We justify the death of young men and women in the Armed Services by saying they gave their lives so that we can vote. The patriotic gore we slosh about makes it all sound so grand. But on the morning after the vote, what, really, changes?
In the 1930s, an American political scientist named Harold Lasswell wrote a now-classic book entitled Psychopathology and Politics. His thesis was simple: Men -- at the time he wrote, the candidates were all men – turn to public life because of deeply rooted, and often disturbing, character traits. Politicians are often driven by needs happier people don’t have, such as the need to control others, the need always to be atop the pyramid of desire, the need to compensate for terrifying weaknesses that make the humdrum lives most folks live unsatisfying. Politics, or at least the pursuit of elective office, is, on Lasswell’s view, the blood sport of the disturbed.
I suspect there is more than a grain of truth in Lasswell’s theory. Read about the life of an elected official, and it seems an extended trip through purgatory: always fund raising; always on display, with every stray remark dissected; always seeking to bend the perception of each act toward the goal of re-election. Who’d want the job?
So perhaps it is inevitable that a trip to the polling place feels less like patriotism than it does plumbing. Walk in, hold your nose, and get the job done. That’s just what I did on Tuesday, and I suspect plenty of others felt the same way.
I’m sure more than a few of you will be offended by these remarks. It is, after all, frightening to state aloud that the reality of the lives we live does not match the rhetoric of our dreams. We are a city on a hill, aren’t we? We’re the envy of the world, right?
Herewith some sobering statistics: One in six children in the United States live in poverty; the gulf between rich and poor widens year by year, with the so-called one percent, those at the top of the heap, controlling 43 percent of the nation’s wealth; our standard of living is declining in terms of health and education as compared to other Western nations. We bail out bankers who are too big to fail, and imprison more people per capita than any other nation on Earth, with the jailer’s ax most often falling on the necks of people of color. What happened to the land of the free?
The promise of political participation means little if it is reduced simply to pulling a lever, or filling in a blank on a pre-printed ballot, after corporations have spent billions of dollars on pollsters to manipulate voters regarded as little more than sheep. One gets the sense today that the two major parties represent different nations, both speaking past one another in an effort to solidify its base of supporters while attracting independents as best they can. Politics has become the art of saying everything and nothing at once, a form of high-stakes liar’s poker.
Aristotle had an edifying view of citizenship. He regarded a citizen as anyone capable, both as a matter of fact, and of law, of deliberating about the issues of the day. That deliberation typically took place in an open forum. All Athenian citizens could gather together in a public place to listen, debate and vote. Citizens were capable of reasoning together. He cautioned that a healthy state would be small; perhaps no larger than the distance a herald could cast his voice.
We are a continental nation in search of an identity. By 2041, Caucasians will be in the minority in the United States. We’ve red states and blue states of vastly differing political cultures. The prosperity that once united us and made us welcome others now yields to a desperate sense that there isn’t enough to go around: we need to shore up the boarders and hoard what’s left.
The polling place seems like empty noise. I want something I can touch, something I can see, and feel, and know to be real.
Where can we turn to build a sense of community in a true, Aristotlean, sense? There is only one forum left in which ordinary citizens can meet face to face to decide important issues, and that place is a jury room. Yet jury trials are dying. Commentators speak of the "vanishing trial." Increasingly, cases are resolved not by an appeal to community standards, but by judicial ruling or plea bargaining.
I say juries can save the republic, if we let them do so. Let juries decide the important issues people bring to court. Let juries decide not just the facts of a case presented to them, but whether the law applicable to a case makes sense. Let juries speak as sovereigns, not as voters on issues others have already decided.
I’ve a brand-spanking-new lawyer reporting for duty this week. Freshly minted and admitted to the bar, she’s eager to show the world what she can do. I need her to help stay atop the chaos that comes of representing people in crisis. But how can I prepare her for what she’s about to see? She’s been trained about a world peopled with rational actors, folks who make cost-benefit decisions, who bargain in the law’s shadows. Nothing in her education prepared for the world most lawyers call home – the world just this side of crazy.
The law deals easily with those who are out-and-out insane, or with those who lack the competence to deal with their own affairs. In the criminal courts, a defendant can be found not guilty by reason of insanity if he or she lacks the ability to control their conduct in conformity with the law, so-called volitional insanity. Similarly, a person who cannot understand the difference between right and wrong can be deemed insane, so-called cognitive insanity. Few defendants are adjudicated insane, although I suspect far more defendants that we realize are, in fact, well beyond th reach of reason’s shadow.
But the insane, I say, are the easy cases.
So, too, are the incompetent.
Paradoxical as it may sound to a lay person, it is possible to be incompetent but sane.
In the criminal courts, a client is incompetent if they are unable to understand the nature of the charges against them, or if they are incapable of assisting in their own defense. A client who does not understand the nature of the charges against him may well be insane. But what of this business of assisting in your own defense? This is where the line between the irrational and rational becomes blurred. Everything is a matter of degree, and, although lawyers are supposed to be able to recognize the difference between a competent and incompetent client, nothing in a standard legal education prepares a lawyer to make such a judgment.
A client presented in criminal court on serious charges is a client in crisis. To what degree does the episodic stress of standing on the threshold of ruin yield confusion, rage, crippling fear? To what degree did underlying and pre-existing confusion, rage and crippling fear lead the client to engage in the conduct that resulted in his or her arrested? This difficult question of causation is at the very root of the difficulty a lawyer faces in determining whether to ask the court to order a competency evaluation.
But how to maintain the confidence of a client while asking the court to order a psychiatric examination? You don’t inspire trust by questioning competence. The essence of a thought disorder is such that the person who suffers from it doesn’t see or feel how bizarre their thought process has become. When is a client merely idiosyncratic but competent? When does an idiosyncrasy sink the boat of reason?
Many years ago, I represented a man on a larceny count. He claimed it was urgent that our office contact the CIA. He was a registered informant and had information the government had to have, or so he said. Delusions about the CIA’s ubiquitous role in the world, and of its ability to exert control over events, is far more common than most folks might realize; hence the dark humorist’s quip about the spy’s monitoring device implanted in his molar. When this client refused to talk about his case unless and until the CIA were called, my firm moved for a competency examination.The client was whisked off to a forensic facility for an evaluation. It seemed like the right call at the time.
Imagine my surprise several weeks later when our office received a call from the Department of Defense, not the CIA, asking about the client. It turns out he was doing undercover work of some sort for the government. I was not surprised to learn that the client was later deemed to be competent. Was the man unusual, even odd? Unquestionably. But he was neither incompetent nor insane, he was just a part-time mole for the feds.
Psychiatrists and social workers have a vast vocabulary to describe folks just this side of psychotic, but disturbed nonetheless. Consider the so-called character disorders: there are borderline personalities, sociopaths, histrionics, and on and on goes the list. Each disorder bears a cognizable thumb print, some set of behaviors or thoughts that represent a departure from the rational man or woman lawyers are taught to counsel.
What to do with a client who insists on inconsistent objectives and then blames you for not accomplishing the impossible? Or the client who needs to create a sense of crisis to feel alive? Or the person who tells you they understand you when you speak, but steadfastly refuses to help themself, but, instead, engages in self-destructive conduct? My hunch is that a significant portion of the cases in criminal courts are really reflections of underlying psychiatric disturbances the law is not nuanced enough to address. We imprison mentally ill people and call it justice.
The law’s dramas take place just south of crazy.
"You sound jaded," my new lawyer said the other day as I tried to prepare her for what she’ll see.
"Not at all," I responded. "I’ve just been around for a while."
I wish I knew where to send this new lawyer for training on how to recognize and cope with the needs of folks a few degrees away from whatever it is we call normal. I wish I knew where to go myself. We refuse to train lawyers on the role of the irrational in our courts. So much the worse for the law; so much the worse for our society.