Deterrence? What's That?

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So, I'm scarcely a fan of throwing reporters in jail for protecting confidential sources, but this New York Times editorial makes an incredibly silly argument:

If she is not willing to testify after 41 days, then she is not willing to testify. It's time for the judge and the prosecutor to let Ms. Miller go.

Which is in the same league as claiming that there's no point jailing a murderer if you're sure they won't do it again. As David Friedman pointed out in his great law and econ primer Law's Order, this misses a good part of the point of punishment: It's not just about the person imprisioned, it's about creating incentives for others not to engage in similar conduct. By all means, let Miller go, but not on the basis of ass-backwards arguments like this one.

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  1. Just watched a re-run of “Edward Scissorhands” & it reminded me of the spectre of Winona Ryder.

    I think a film version of Judith Miller’s story would make a great comeback vehicle for Ms. Ryder. There’s no vehicle like an indignation fueled flick to send an actress straight to the top of the list for the Oscars, especially if it requires a beauty like Ms. Ryder to put on a big ole pair of horn rim honkers so that the audience knows she’s playing someone smart.

    Are you listening Winona? Option this while you still can!

  2. Actually it’s worse. It’s more like saying that there’s no point jailing a murderer if you’re sure that the jail time WON’T stop him from doing it again. So what’s the point?

  3. It pains me to stick up for the New York Times, but actually, this argument may not be QUITE as dumb as it sounds. The purpose of jailing a murderer isn’t just to prevent him from killing again–it’s supposed to be a punishment. Whereas Miller’s imprisonment is, in theory, not a punishment but simply a way to compel her to testify. And clearly it is not working.

  4. Exactly. Miller is in for civil contempt, a “coercive” mechanism which the courts have said is NOT punishment, because the contemnor can be released any time they want – by cooperating. Judges routinely release a contemnor after a period of time if they haven’t cooperated under the theory that further incarceration will have no effect – although I usually see 6-8 months as the period.

  5. Even though David Friedman is a fellow anarchist, that doesn’t make him right about EVERYTHING, ya know.

  6. But civil penalties (whether we call them “punishment” or not) have exactly the same incentive purpose as criminal penalties: To induce people to (for instance) take the efficient level of precaution to prevent accidental injuries.

  7. Julian–

    But in the case of someone who is imprisoned (as opposed to merely paying a fine), isn’t the difference between civil and criminal sanctions mere hairsplitting? Besides, I disagree about the precautionary argument: if I accidentally hit a kid with my car and have to make civil restitution (though I’m not found criminally liable), the legal purpose of my civil payments isn’t to compel me to drive more safely next time; it’s to pay the damages incurred by my carelessness. Now, it could be said that PUNITIVE damages are meant to scare others off, but I don’t see how Miller’s jailing is legally classified as punitive.

    Her imprisonment was supposed to compel testimony, it has obviously failed, and the only reason to keep her there any longer is sheer spite.

  8. Her imprisonment was supposed to compel testimony, it has obviously failed, and the only reason to keep her there any longer is sheer spite.

    Obviously? If she sings after a couple more months in jail, then her imprisonment would be a success as far as the court is concerned.

  9. In the case of murder, and in particular capital punishment, it has to do with the place accorded to a voice by society, a voice that is missing.

    That makes the case of murder unique.

  10. “Her imprisonment was supposed to compel testimony, it has obviously failed, and the only reason to keep her there any longer is sheer spite.”

    IIRC, this is precisely why Congress passed a law, during the infamous Elizabeth Morgan contempt case, providing that the most a person can be jailed for civil contempt in the District of Columbia is a year (see http://en.wikipedia.org/wiki/Elizabeth_Morgan). The thought was that if a person is willing to stay behind bars for 12 months rather than sing, then imprisonment has obviously failed in its coercive purpose and that keeping the person any longer would just be vindictive (not that there’s necessarily anything wrong with being vindictive, but that’s not the purpose of civil contempt.)

    Of course, Judith Miller has quite a while to go before she’s been in the hoosegow for a full year. Who knows? She might just break after 10 months.

  11. Seamus and Solitude–

    I don’t know what Judith Miller is like, but if it were me, I’d keep my mouth shut just to spite them. Besides, by now I think it’s also a matter of pride for Miller to keep her mouth shut.

  12. Jennifer,

    But then it would be a matter of pride for the court to keep her there. It ain’t called “contempt of court” for nothin’.

  13. Solitudinarian–

    True, but courts are, in theory, supposed to be above mere human emotions like pride or the thirst for vengeance.

  14. Jennifer,

    Letting other people see what happens when you blow off a judge’s order to testify isn’t even a possible explanation?

  15. If having contempt for the court is illegal, I’m in serious trouble.

  16. If having contempt for the courts is illegal, I’m in deep trouble.

  17. Joe?
    She didn?t publish a damn thing, so she shouldn?t have been forced to testify. Something?s wrong when the WITNESS to a crime goes to jail, while the one who actually committed the crime (Novak) gets off scot-free.

  18. NoStar,

    Thankfully, there is a great difference between “contempt of court” and “contempt for the courts”.

  19. Jennifer- slightly OT, but you were right.

    London police don’t have video of shooting.

  20. Hapy Jack–

    Of COURSE they’re not going to have video tapes showing that they were in the wrong. What, did you think the purpose of public surveillance was to protect the PUBLIC?

  21. Happy Jack–

    Of COURSE they’re not going to have video tapes showing that they were in the wrong. What, did you think the purpose of public surveillance was to protect the PUBLIC?

  22. Sorry for the double post. I blame it on having spent to much time on the pot smoking thread. Talk about a killer contact high.

  23. It’s the server that’s stoned today, NoStar. It keeps repeating everything. What, did I just say that? It’s the server that’s stoned today, NoStar. It keeps repeating everything.

  24. Jennifer,

    “She didn?t publish a damn thing, so she shouldn?t have been forced to testify.” Who cares if she didn’t publish anything, she still witnessed (allegedly) a federal felony.

    “Something?s wrong when the WITNESS to a crime goes to jail, while the one who actually committed the crime (Novak) gets off scot-free.” Novak almost certainly didn’t commit a crime – jounalists, no matter how dishonest and creepy, can write whatever they want. The White House official who leaked the classified information, on the other hand, very well could end up in prison.

    Once again, she isn’t in jail for what she published, or what she heard, or what she said. She’s in jail on contempt, because she refused to testify to the grand jury.

  25. Jennifer,

    Did you actually say that out loud, or did you just think it?

  26. Once again, she isn’t in jail for what she published, or what she heard, or what she said. She’s in jail on contempt, because she refused to testify to the grand jury.

    Novak not only heard the same thing, but published it. You seriously don’t have a problem with HER being in jail while HE continues on with his life?

  27. Yes, Jennifer, it makes one wonder about Mr. Novak.

    My guess is that he already gave it up to someone in Fitzgerald’s office. Time will tell.

  28. My very first comment on the very first Novak/Plame thread read:

    “I think Robert Novak should be shot by a military firing squad.

    Now what’s this about a CIA leak?”

  29. Seamus and Solitude–

    — would be a great title for a CD of gentle, anodyne Irish music.

  30. Stevo,

    As long as I’m not the one singing.

  31. But civil penalties (whether we call them “punishment” or not) have exactly the same incentive purpose as criminal penalties: To induce people to (for instance) take the efficient level of precaution to prevent accidental injuries.

    The incentive is the same. However, the protections for the accused are less when the coercion is merely civil. That is why there is a focus on “punishment.” The thinking is that no “punishment” means straight-to-jail-no-5th/6th amendments. That is why “punishment” is a term of art here.

    Of course, the absurdity is that the civil contempt penalties are a “punishment” under any understanding, except the currently popular Constitutional understanding. This absurd result obtains bcs the current Constitutional understanding is incorrect and itself absurd.

  32. Forgive me if I am missing something, but isn’t a big part of the reason that Miller is in jail is that Rove has claimed he was told by a journalist?

    Also I cannot see any relevance, at all, of whether or not she published a story — in fact bringing that point up seems to indicate that whoever is making the point has completely missed what is going on here.

  33. doesn’t putting a deadline on the imprisonment just give the insurgent- sorry, journalist- an incentive to wait us out?

  34. She didn?t publish a damn thing, so she shouldn?t have been forced to testify.

    Even though she might very well know who fed that wanker Novak his info? It’s difficult to feel bad for her because it’s difficult to imagine, given her previous conduct, that she’s standing up for principles now and not just lying to protect someone. Outting an undercover CI Agent is wrong, I don’t care how many hairs you want to split about how Plame wasn’t overseas. As far as I’m concerned, Miller can either come forward and give us the rest of the information so that we can properly determine her part in this matter, or she can rot in jail as Novak’s accomplice, because her silence is only helping him to remain free.

  35. Coach, Since Rove issued a blanket release to all Journalists to reveal if he was there source for outing Valerie Plame, Ms. Miller must be showing her contempt for the court to protect someone else. (Most likely that weasel in Cheney’s office. Sorry, but the contact high from the Pot Smoking thread has affected my memory and I can’t remember Cheney’s Chief of Staff.)

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