So they read it while I waited. Then they commented and I taped what they said.
I should also mention that all three of those attorneys were people whom I knew to be more or less critical of the legal establishment. Their positions and experience, on the other hand, were considerably different one from the other. And I'd heard that one of them was a frequent reader of science fiction, so I hoped that she, at least, could take a rather free-wheeling viewpoint.
I suppose this is a good time to tell you who those three attorneys are. You all know their names: Judge Curtis Liederman, Professor Ellen MacLieth, and Senator Bob Lawes.
After we'd discussed the rough draft, I worked it over again a couple of times, making substantial changes, and called all three of them in for a joint conference. After we'd read it over together, I told them I wanted each of them to draft his own version of it—to give me a workable system that included what I considered basic principles. And to do that without consulting one another.
Their results were very similar. Then we all got together and spent a day talking them over, after which the three of them drafted a final form which we edited together.
So that's how the package came to be. The next question is, what's in it? What does it say?
I'll get to that. But first I need to talk about the problems, starting with laws and the police. What kind of system is it that requires an officer to enforce laws that shouldn't be? Laws that don't make sense, or are harmful? Or unenforceable? We require too much of a police officer when we ask him to use double-think—when we ask him or her to justify, to himself or herself, police actions that are not justifiable. Or when we throw his or her careful work into the trash through some judicial stupidity.
I've heard it said that the only thing wrong with law enforcement is that it's in the hands of humans. Actually it was Arnold Mansford who said that, to several million of us on television a year or so ago. Arnold, what would you suggest? Robots? If robots were available that were sophisticated enough, advanced enough, and we turned to them for our police services, it would be—a disaster. No one should be enforcing the law who can't exercise subjective human judgement. As someone involved in research and development on robots, I assure you that humans are infinitely preferable to robots and computers for dealing justly with anything as complex, variable, and subtle as human behavior and human society. For dealing with anything so unamenable to accurate mathematical expression.
Yet in training police officers, and in managing police forces, too often the model striven for seems to be the robot. As if the ideal policeman should operate as an organic robot. This, along with unreasonable demands, and the inequity, unenforceability, and arbitrary stupidity of so many laws, especially as they stand interpreted, tends to warp too many officers toward emotional dullness—toward the non-human, insensitive condition of the robot or computer. What is needed in law enforcement is intelligent, fair-minded officers well informed in the principles of justice and well trained in the functions of police. Men and women trained and permitted to be tolerant but tough,
understanding but responsible.
And the system of laws should be one they can feel honorable, if not always comfortable, about enforcing.
As for the courts, all too often they have frustrated the citizen looking for justice, or looking for guidance in behaving reasonably and within the law. Too often the courts have frustrated intelligent efforts to improve conditions, and all too often they have also frustrated the police. Despite the efforts of many good men and women in the legal profession, American courts are too often a failure and sometimes a disgrace.
Incidentally, I am not saying that the police should have the right to do whatever they wish. The purpose of law is not the convenience of law officers, and necessary restrictions will remain. Actually, most of the laws constraining police behavior will remain, but some laws will change, and the courts will change. We cannot reasonably expect the legal system to be perfect, but it must be adequate. And as it stands, it falls too far short of providing reasonable defense and justice. In the guise of justice, the system has sometimes led to injustice, very often delayed justice, and all too often no justice. Ask many of the people who've been there. Too often it has undermined both order on the one hand and reasonable liberty on the other.
How did this happen? It was a matter of cooperation between legislators and citizens who either were shortsighted or had some degree or other of tunnel vision. And by activists and special interest groups. Some operated with avarice, some with the best of intentions, and all too many with intolerance. Too often the battlecry has been "Pass a Law!" Or more exactly, "Pass
My
Law!—the law that will give me an advantage. Or the one that fits my prejudice." And lawmakers passed these laws by the uncounted thousands.
Many of those laws, considered singly, seem like good ideas. But taken en masse, they grew to be a legal disaster that too often has strangled rights and perverted or denied responsibility.
And the legal profession, acting within the justice system, and in legislatures and the Congress, has failed to keep things from getting worse. The popularity of "Dirty Harry," and of vengeance movies, tells us something about the public attitude toward our legal system.
So I'm making some changes before it's too late. Before the people, in final disgust, turn to real-life Dirty Harrys and to gun law.
The Constitution doesn't allow the federal government a whole lot of authority over state courts. Although it gives us more than some might think, and we're taking advantage of every bit of it. So the reforms I'll talk about deal mainly with federal courts and laws and to some extent with those of the individual states. And I invite the American people to demand that their legislatures pass similar legal reforms.
Some attorneys will applaud these reforms, and some will howl. I invite the American people to consider the howling as a reflection of pain in attorneys' bank accounts. Also, keep in mind that many legislators are lawyers, and that some of them will give all sorts of reasons not to reform state law. Don't let them get away with it.
The adversary system has made of our courts a sort of intellectual football field, with the prosecution and the defense declaring war on one another in order to win, and to hell with justice. So we have changed the ground rules to get away from this. These changes will also reduce the seeming endlessness of some trials, as well as outrageous court costs and legal fees.
Also, while a judge may, as before, find a public person guilty of contempt of court, a citizen or a higher court now may charge a judge with contempt of public.
In the new system, the term "guilt" is not used. The jury will find the accused either
at fault
or not at fault, based on whether they judge that the person committed the illegal act or didn't commit it. Good intentions, ignorance, insanity, have nothing to do with fault.
However, they may modify
culpability
. In deciding culpability, the main considerations are fault, how reasonably avoidable the act was, what the person's alternatives were, and what his intentions seem to have been.
And the penalty depends on culpability and on what harm, if any, was done to someone.
The new system also considers that individual freedoms are too precious to be sliced and hacked at by people and groups who feel that people must be protected from themselves. Let me restate that. The legal system is no longer the tool of people who feel compelled to control others—people with a compulsion to protect you from yourself whether you like it or not. The Constitution does not authorize the federal government,
or the state governments
, to impose that kind of control on citizens.
In this regard, I invite you to consider the ninth amendment to the Constitution, which states: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Three examples should be enough to let you see what I mean by keeping the law out of areas of
self
-harm. If you are eighteen years old or older and want to ride your motorcycle without a helmet, you have the right to. Or if you are less than eighteen and your parents are willing, you have that right. But as a motorcycle operator, you can require your riders to wear one.
And if you want to drive without fastening your seatbelt, that's your right too. Of course, your insurance company may pay less, by a reasonable amount, if you're hurt or killed when not strapped in, but you have the right to ride that way, with this exception. A driver can insist that his or her riders buckle down.
Also, taking harmful drugs is no longer a crime, but laws controlling the
dispensing
of harmful substances remain in force. And you will soon see new and forceful government action against the importation of illicit drugs. The Coast Guard is the only branch of government authorized by international law to stop, search, and seize vessels at sea for smuggling. A warrant is not, and has never been, required for this, and reasonable force can be used.
However, the Coast Guard has had far too few ships and planes for the job, so I have temporarily transferred the necessary ships, planes, and personnel from the Navy to the Coast Guard.
Almost no states have laws against suicide or attempted suicide, and such laws are voided by this reform. But there is an
indirect
prohibition against suicide that applies almost everywhere in America: Suicide is severely punished by insurance companies, which generally refuse to pay "death benefits" in cases of suicide.
If someone wishes to end his or her own life, that is their prerogative. To live or not to live, within the individual's ability to do so, is his or her most basic right. And it is a right that supercedes the desire of anyone else—
anyone
else—that the person remain alive. Even that of a spouse or parent or dependent, and certainly an insurance company.
Yet an insurance company also has the right to protect its shareholders and policy holders from someone who, let us say, might pay $100 for a $100,000 life insurance policy and then kill himself, enriching his beneficiaries. To legalize that would be like granting a license to steal.
So beginning this February first, insurance companies may not refuse payment of indemnities for suicides.
But they may reduce payments
, based on reasonable actuarial formulas, and considering the premiums paid and the coverage. The intention of this is not to punish suicide, but simply to protect the insurance company and its policy holders and share holders from financial damage.
None of this applies to church prohibitions against suicide. A church may withhold its sacraments from a suicide if it wishes—that's a matter of religious freedom.
Incidentally, if any of you are considering killing yourself, keep in mind that suicide is not reversible. You can't change your mind the next day. And the condition you sought to avoid by suicide may not have seemed nearly so terrible the next day. Or it may be remedied next week! It might be better to get counseling from a pastor or a therapist than to take cyanide. But it's your life.
Unfortunately this speech may inspire a brief flurry of suicides. But more than a few of them would be covert suicides anyway, masquerading as accidental deaths. Others would become tomorrow's drug overdose statistics. Or murders.
Now let's consider the interpretation of law.
A legal precedent is the way some judge in the past interpreted how the law applied to some specific case. In the courtroom, judges and attorneys use legal precedent to guide their arguments and decisions. And while legal precedents are sometimes the product of high wisdom and often of common sense, they may also prove to be foolish, certainly in some of their applications.
And laws, as interpreted with the help of legal precedent, were supposed to be followed exactly. "To the letter." So what happened? People, generally lawyers or with the collusion of lawyers, found ways to sneak around the intent of the law by finding chinks and crannies in the language of the law. They found ways of interpreting the law to circumvent the intention of the law.
Sometimes, when a law or its interpretations were destructive, finding a loophole was the only way an intelligent action could be carried out. But all too often it amounted to cheating, to getting an advantage over others, and the broader welfare be damned. And the person or group who could afford a coven of clever lawyers could operate more freely, even much more freely, than others could. Thus wealth gave one an advantage in legal matters.
There are multimillionaire lawyers around who built their fortunes on this kind of thing. Mostly it wasn't illegal, although sometimes it may have been. You can look at it as gaming, but from a justice point of view it's destructive. And the legal profession didn't treat it as an ethics issue; that would have hurt too many of their bank accounts. So even if you've been an honest, ethical lawyer, you still share responsibility for the tar of public disgust, because you did not take effective action to reform your profession and the legal system.
I really regret saying that, because I've become aware of how hard some of you have worked to reform it.
So now we are requiring all courts, not just federal courts, to apply laws
as the laws were intended.
Where the original intent is not clear from the language of the law, intent will be decided according to the conditions and situations that the law was written to deal with. The intent of the law will always outweigh precedent to the contrary.
Cracks and
unintended
loopholes will be disregarded. Also, I'm asking the Congress and other legislating bodies to make a clear statement of their intentions in passing any new law, stating those intentions first in terms of broad principles and then of immediate specifics.
The most basic and most important changes in the system will be in the courts. These apply mainly to federal courts, until the people and their legislatures install them in state law. The package you'll be given after this talk describes in what ways this reform affects courts other than federal courts. Now, with that in mind, here are the new ground rules: