Scott Greenfield has apparently been having a blawgospheric discussion with Doug Berman about the merits of a Kentucky bill, HB210, that, in Doug's words, "imagines forfeiture as a possible alternative (rather than an addition) to lengthening prison terms for certain offenders."
After some back-and-forth in comments to Scott's thorough critique of the idea of asset forfeiture as a solution to the problem of overincarceration, Doug wrote:
I am not content to just "agree to disagree (strongly) on this one." Anyone not seriously thinking about VERY different solutions to mass incarceration, in my mind, is a BIG part of the problem. (And, as you should know, most criminals in prison now don't have a car or a house or a job to forfeit.) Why are you more sympathetic to people with property who commit crimes than to people without property who commit crimes.
I have long believed that liberals get in the way of SERIOUS game-changing criminal justice reforms more so than conservatives. This discussion confirms this belief. As I suggested at the outset, I think this is ultimately more sad than scary, because it shows that liberals are so brainwashed or beaten by current realities that cannot ever imagine a different world in which sounder criminal laws come to dominate.
"Conservatives" are people "seriously thinking about very different solutions" while "liberals" are people who "cannot ever imagine a different world"? Huh??? Did I fall asleep and wake up in Nineteen Eighty-Four?
It sounds to me like Doug is using "conservatives" to mean no more than "good people, people who agree with me" and "liberals" to mean "bad people, people who don't."
That would be well and good, except that very few people would agree that "conservative" means "agreeing in all things with Doug Berman". In fact, I suspect that lots of people who call themselves conservatives would probably agree with Scott that Doug shouldn't be calling himself one.
Once upon a time words had meanings that could be looked up in dictionaries; this was handy because if someone used the word "conservative" or "liberal" I could look it up and, having done so, safely assume that he intended its primary usage, unless the context suggested otherwise. I could have ascertained from the dictionary that "conservative" means "holding to traditional attitudes and values" and that "liberal" means "open to new behavior or opinions" and assumed that Doug intended those meanings.
No more.
(I'd like to propose that nobody use the word "conservative" or "liberal" on the web without linking to a precise definition. Because Doug's two quoted paragraphs prove that not only has the word "liberal" come untethered from its formerly-accepted ["dictionary"] definition, but "conservative" has as well.)
What's the application to the Art and Science of Criminal Defense Trial Lawyering?
Words have meaning. Sometimes they have multiple meanings. Beyond their meanings, though, they invoke emotion. "Liberal" has long been an epithet divorced altogether from its received meaning, such that even a liberal (open to new opinions, respectful of individual freedoms, favoring maximum individual liberty) guy like Doug Berman rejects the label for himself. "Liberal" has become a toxic word in our culture.
Doug's quoted prose suggests that he goes further than just rejecting the "liberal" tag and adopts instead the label "conservative" -- not, I have to think, because of its meaning, but because it is the opposite of "liberal." The contrapositive of "'liberal' is bad" is "'conservative' is good."
When we're talking to juries, we have to recognize that, despite the meaning of words, they may trigger emotional responses in our audiences. The government will, before the jury, refer to the complainant in a case as "the victim" if given the chance -- even though whether the complainant is in fact a victim is generally the issue that a jury trial is intended to determine. "Victim" is a word toxic to the accused in a criminal case. So are commonlaw words like "murder" and "rape." In Texas, the government will use these at every opportunity even though they are not part of the statute.
Astute prosecutorial readers will note that in the last paragraph I referred to "the government" rather than "the State." This is another illustration of the point. "Government" means roughly the same as "State", but "government" is a word toxic to the State. Even people who are inclined to trust the State, or the Commonwealth, or (lie of lies) "the People" find good reasons in their life experience not to trust the government.
