May judges ever nullify the law?

Notre Dame Law Review

Volumn 74, Issue 5, 1999, Pages 1657-1671

  Smith, M B E ^a  

^a SMITH COLLEGE   (United States)

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EID: 0033415647     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (48)

1. The six-hour course was offered at Smith College in 1996, under the auspices of the Flaschner Judicial Institute of Boston. I must thank the participants, who were wonderfully lively and engaged. Particular thanks are owed to Hon. John M. Greaney, Associate Justice of the Massachusetts Supreme Judicial Court, who first suggested the course and who made it possible.
2. See MASS. GEN. LAWS eh. 94C, § 32J (1995).
3. These are the facts I remember from class; I have made no attempt to verify them.
4. See Commonwealth v. Cowan, 664 N.E.2d 425 (Mass. 1996) (reversing a trial court that imposed a less severe sentence than the mandatory minimum of one year in a house of corrections that was prescribed for illegally possessing a firearm.) Cowan also held "[i]t is well within [the Supreme Judicial Court's] general superintendence power [under MASS. GEN. LAWS ch. 211, § 3 (1986)] to correct a sentence that has been imposed contrary to law." Id. at 427.
5. See Thomas Sim's Case, 61 Mass. (7 Cush.) 285 (1851).
6. This Article attempts to convey the point of view of an appellate attorney unpleasantly surprised by the phenomenon: it's hard then to avoid feeling as though one has been cheated of a well-earned victory. But here, following Kent Greenawalt, I shall use the less loaded word "nullification." See infra note 14.
7. For a lively recent salvo in this old jurisprudential fight, see MALCOLM M. FEELEY & EDWARD L. RUBIN, JUDICIAL POLICY MAKING AND THE MODERN STATE: HOW THE COURTS REFORMED AMERICA'S PRISONS (1998).
8. MORTIMER R. KADISH & SANFORD H. KADISH, DISCRETION TO DISOBEY: A STUDY OF LAWFUL DEPARTURES FROM LEGAL RULES (1973) . I hereby disavow criticisms made of that book in my review, M.B.E. Smith, Concerning Lawful Illegality, 83 YALE L.J. 1534 (1974) (reviewing KADISH & KADISH, supra note 8). The review makes some useful observations about the concept of obligation but is wholly mistaken in thinking these inconsistent with the Radishes' enterprise.
9. MORTIMER R. KADISH & SANFORD H. KADISH, DISCRETION TO DISOBEY: A STUDY OF LAWFUL DEPARTURES FROM LEGAL RULES (1973) . I hereby disavow criticisms made of that book in my review, M.B.E. Smith, Concerning Lawful Illegality, 83 YALE L.J. 1534 (1974) (reviewing KADISH & KADISH, supra note 8). The review makes some useful observations about the concept of obligation but is wholly mistaken in thinking these inconsistent with the Radishes' enterprise.
10. KADISH & KADISH, supra note 8.
11. 124 Eng. Rep. 1006 (C.P. 1670).
12. Id.
13. KADISH & KADISH, supra note 8, at 85-91.
14. Id. at 90.
15. KENT GREENAWALT, CONFLICTS OF LAW AND MORALITY (1987).
16. See id. at 368. This paragraph amplifies Greenawalt's terse discussion. In particular, it is my contention that appellate courts often ratify trial court nullification.
17. See id.
18. I here rely upon Ronald Dworkin's useful distinction between background rights and institutional rights. See RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 101-05 (1978 ). For the best recent theory of the nature and scope of our background rights, see JUDITH JARVIS THOMSON, THE REALM OF RIGHTS (1990).
19. I here rely upon Ronald Dworkin's useful distinction between background rights and institutional rights. See RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 101-05 (1978 ). For the best recent theory of the nature and scope of our background rights, see JUDITH JARVIS THOMSON, THE REALM OF RIGHTS (1990).
20. I have changed the names of those involved to protect their anonymity.
21. 386 U.S. 18 (1967).
22. George might have won at a new trial if the victim had suddenly died before it could occur. It is possible that his testimony at the first trial might be deemed inadmissible at a second trial on ground of its "unreliability" - viz., that having wrongly been denied counsel George had had no "adequate" opportunity to cross examine the witness. See Commonwealth v. Bohannon, 434 N.E.2d 163 (Mass. 1982).
23. Rose v. Regan, 181 N.E.2d 796, 800 (Mass 1962) (citations omitted). Accord Brady v. United States, 397 U.S. 742, 748 (1970) (holding a waiver of a constitutional right must be voluntary). To see the ubiquity of this definition of "waiver," see its entry in any edition of BLACK'S LAW DICTIONARY.
24. 545 F.2d 273 (1st Cir. 1976).
25. Id. at 278 (citations omitted).
26. 457 N.E.2d 287 (Mass. App. Ct. 1983).
27. 473 N.E.2d 1103 (Mass. 1985).
28. 822 F.2d 166 (1st Cir. 1987).
29. 422 U.S. 806 (1975).
30. Tuitt, 473 N.E.2d. at 1109 (citing Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir. 1976)).
31. See id. at 1109. This principle was not mere dicta but was essential to Tuitt's holding; since Tuitt expressly demanded his right of self-representation, the Massachusetts Supreme Judicial Court could only escape the conclusion that he was denied it by holding that it had never "clicked in," on the ground that he had never waived counsel.
32. Fair, 822 F.2d at 174 (citation omitted).
33. The argument's formal structure (ignoring quantifier complications) is: "If p [George refused to waive his right to counsel], and if p then q [If a defendant refuses to waive counsel, then he has not waived it], then q [George did not waive counsel]."
34. Brecht v. Abrahamson, 507 U.S. 619, 629-30 (1993) (quoting Arizona v. Fulminante, 499 U.S. 279, 309 (1991)).
35. MASS. APP. CT. R. OF APP. PRAC. 1:28.
36. 545 F.2d 273(1st Cir. 1976).
37. Id. at 278.
38. Id.
39. Commonwealth v. Tuitt, 473 N.E.2d 1103, 1106 (Mass. 1985).
40. Commonwealth v. Lee, 475 N.E.2d, 363, 368 (Mass. 1985).
41. Kent Greenawalt took part in my survey and sent me very helpful comments.
42. Thanks also are owed to Professors Sandy Kadish, Andy Kaufman, Steve Munzer, George Christie, John Connolly, Jim Nickel, Gerry Postema, David Lyons, and Brian Bix.
43. For instances of such dicta, see supra note 27; see also Chapman v. California, 386 U.S. 18, 23 n.8 (1967).
44. Some readers may be inclined to scoff at the notion of a "sense" of justice. I commend them to M.B.E. Smith, The Best Intuitionistic Theory Yet, 11 CRIM. JUST. ETHICS 85.
45. The Supreme Court's recent supervision of capital prosecutions and sentencing is the great breach in this tradition. See, for example, Woodson v. North Carolina, 428 U.S. 280 (1976), which invalidated all mandatory death sentences on the ground that these violate convicts' background rights to be treated "as uniquely individual human beings." Id. at 304. The Court did not satisfactorily explain - nor has it ever - why like reasoning would not invalidate all mandatory minimum sentences of incarceration. Surely, if there really is a background right of individual treatment, it extends farther than to proceedings in which our government proposes to kill us. It is not sufficient merely to say that death "qualitatively" differs from confinement, so that life imprisonment without possibility of parole can be dispensed without individual consideration of a convict's desert and without violating his background rights.
46. But see, e.g., Timothy Egan, War on Crack Retreats, Still Taking Prisoners, N.Y. TIMES, Feb. 28, 1999, at 1 (graphically describing the many injustices caused by present mandatory minimum drug sentences).
47. MASS. R. CRIM. P. 30(b).
48. RESTATEMENT (SECOND) OF CONTRACTS § 90(1) (1981). The full text provides, A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can only be avoided by enforcement of the promise. The remedy granted for breach may be limited as justice requires. Id.