Yes, we should really flesh out the numbers a bit more. It’s hard to convey just how dramatic they are. It’s like they defy description, pointing to a situation that is breathtakingly disingenuous when it isn’t simply incoherent.

So the system’s statistical verdict is that actionable constitutional violations occur only .25% of the time in day to day law enforcement. What does that actually mean?

If you got a grade in a course you took in school of 90%, that’s a good grade. Your parents would be pleased and you would be rightly regarded as a successful student, at least for that particular course.

If law enforcement in the United States achieved the same grade in avoiding any actionable constitutional violations or wrongdoing in the course of enforcing the law – that is, 90% of the time – they, and we, would be doing quite well. A pretty darn good job. There’d be room for improvement, of course, but a pat on the back would not be undeserved.

Yet if that were the state of affairs that our justice system actually recognized as a matter of statistics, it would be recognizing violations at a rate 40 times higher than it currently does.

Let that sink in.

The New York Times – really, really late to this party (see our previous post) but better late than never, we surmise – sums it all up pretty well by quoting what they describe as a “conservative” jurist:

An Escherian Stairwell. Heads defendants win, tails plaintiffs lose.

What would this cost, money wise? Probably very little, in the grand scheme of things.

Correcting the situation to a point where it is remotely reflective of reality – that is, a violation rate of 10% as opposed to the currently recognized but preposterous .25% – will raise the amount of money collectively awarded to Plaintiffs from the currently paltry $600 million to about $20 billion.

That is still so very cheap. About the amount that the federal government spends on IT upgrades every year.

Let us – we, who have actually tried a case or two to juries representing “disfavored litigants” (and we now have official cover for using that phrase, as we just noted) – make another important point. You know those tiny number of cases falling into the .25% that are actually successful? They were all extremely hard won. People who have never done it have no idea.*

Put another way, there was a lot of work involved. Admittedly, that work extends to the attorneys that defended the cases, the judges who sat on them, and to a lesser extend the juries that heard them. But none of these remotely compares to the work required of the attorneys representing the Plaintiffs, not to mention the dedication and devotion, if you can grasp what we are alluding to there, which unless you have done it yourself you probably can’t.

So what’s the point, then? There’s a large element of sloth involved in the current state of affairs. Mental and moral sloth. And getting that .25% figure up into a range where it is more reflective of reality will take a great deal more lawyer work.

And as an aside, lawyers like us are spent. It is younger lawyers who will have to do the work.

And there’s a sub-point. To maintain the disconnect between that .25% figure and reality has required more than sloth; it has required dishonesty. Everyone really, in their heart of hearts, knows how phony that number and the institutions that generate it are. That awareness is reflected in the line from the conservative judge we just quoted.

So there’s not only hard work involved in correcting things; there’s something else that in some ways is even harder. We’re going to have to admit what failures we have been, how badly we have served our country, our people, and the cause of justice we swore to uphold. We will have to make amends. We – lawyers, I mean – will have to atone.

The journey back to honesty and truth begins with telling the truth about ourselves. And it’s not a pretty truth.


*And the set of “people who have never done it” includes every single justice on the SCOTUS, almost every judge on federal appeals courts, almost every lawyer who argues before those courts, and at this point probably the majority of judges and lawyers regularly practicing in state appeals courts, because at this stage of our collective professional development lawyers in state courts just mindlessly imitate what they observe in federal courts, which for no reason we can discern are regarded as being greatly superior and more prestigious.

As we sometimes describe the situation to friends who have some familiarity with the Navy (as we do) it’s analogous to the Navy having a Chief of Naval Operations and Admiralty that have never been to sea. It’s ludicrous.

But that’s another post for another time.