First impressions on Castle Rock

I've taken some time to read through the opinion released yesterday in the Castle Rock case. Partly I want to share, but this is also a convenient way to put down my mental notes which will, I think, help my case note. My response today is policy-based. I'll move on to the legal issues later. For more reading, Mike and Norm each have put down some thoughts.

My biggest problem with the case has to do with the policy implications. The Court goes through an exercise of demonstrating the history of law enforcement is one of discretion. The Court also describes the nature of crime as an offense against society rather than as an offense against the individual, and quotes Blackstone to back up the point. Slip Op. Majority at 16.

Ironically, the Blackstone quote highlights the importance of the criminal law.

criminal acts, "besides the injury[they do] to individuals, . . . strike at the very being of society; which cannot possibly subsist, where actions of this sort are suffered to escape with impunity." Id., quoting Blackstone.

It seems to me, though, that the danger of instability against which the criminal law protects us is not from the initial crime. The danger is from the prospect of "self-help." When there is no protection from the law, individuals will tend to exact their own punishments and protections.

That's a small criticism, really, as the law saying that the state has no liability for failing in a particular instance to carry out a general duty is fairly well-established. (It's also usually very surprising to non-law types.) The main problem I have is that the state extended a special promise above and beyond its commitments to the general public. The peasant came to the sovereign to ask a boon, and the boon was granted, or so she thought. Her trust in the state was betrayed, so why should she or anyone else trust the King?

I've heard a lot of people talk about women who murder their abusers. I can't count the number of times I've heard the phrase, "Why doesn't she leave?" This comes even from people I had thought knew better, or at least could acknowledge their inexperience. This is a small part of the answer to these questions. She doesn't leave because she knows that nobody else can protect her, and staying is safer than leaving. Even the life of a slave is sweeter than death. Likewise, she kills her abuser because she knows that it's the only way to protect herself.

Here's a little secret: the criminal and protection order statutes serve to protect the lives of abusers, too.

The Court would have you believe that none of this is of any concern. The 10th Circuit acknowledged the danger of rendering a protection order meaningless and the Court dismissed such concern as "mere hyperbole." Slip Op. Majority at 11. I can tell you from experience that survivors are acutely aware of the limits of the system. The Court has just eliminated an option, and that is a terrible disservice to all of us.