Punishment in Wonderland

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I. INTRODUCTION As a general rule, and generally by design, American judicial opinions make for rather dull reading, except for those readers with a direct stake in the outcome of the case a particular opinion is deciding. In more than eight years as a law clerk drafting opinions for a small army of state and federal judges, I have yet to slip so much as a metaphor past a judge for whom I was working, much less a citation to a literary authority. There are, however, some jurists who, in some circumstances, will enliven their opinions with a rhetorical salvo inspired by the canons of literature. One circumstance that often inspires judicial invocation of popular literature is the maladministration of justice. The nightmare world created by Franz Kafka in his novel The Trial has been a particularly popular touchstone in this realm, (1) for obvious reasons, but nearly as popular among judges is the Wonderland created by Lewis Carroll in his children's books Alice in Wonderland and Through the Looking Glass. (2) The richness of Carroll's works as source material for judicial opinions is demonstrated by the sheer number of different passages that have found their way into the volumes that report American federal and state judicial opinions. (3) In this article, I focus upon one oft-quoted line, the Red Queen's statement of criminal procedure, near the end of Alice in Wonderland: Sentence first--verdict afterwards. (4) Specifically, this article is a compendium of judicial references to the Red Queen's approach to punishment with particular reference to the real-world circumstances that have inspired judges to refer to it. (5) II. SETTING THE STAGE Sentence first--verdict afterwards comes very near the end of the trial that occupies Chapters 11 and 12 of Alice in Wonderland. For those of you who have not recently visited Wonderland, a brief review of the Knave of Hearts' tart-theft trial may be in order. Chapter 11, Who Stole the Tarts, begins with the King and Queen of Hearts being seated upon their throne. (6) Alice recognized the King as the judge, because of his great wig, (7) and observed, among other curiousities, that the jury--composed of animals and birds--had been equipped with slates upon which to take notes during the trial. (8) In a passage that has been cited in several opinions, (9) the White Rabbit began the trial by blowing three blasts on a trumpet and then reading from a parchment: 'The Queen of Hearts, she made some tarts, / All on a summer day: / The Knave of Hearts, he stole those tarts, /And took them quite away! (11) The King responded by telling the jury: 'Consider your verdict,' (11) to which the White Rabbit responded by noting: 'There's a great deal to come before that!' (11) Later on, during the testimony of the Mad Hatter, the King told the witness: 'Give your evidence ... and don't be nervous, or I'll have you executed on the spot.' (11) While the Mad Hatter was still on the stand, he began to report a bit of hearsay, and the following exchange took place: 'I'm a poor man,' the Hatter went on, 'and most things twinkled after that--only the March Hare said--' 'I didn't!' the March Hare interrupted in a great hurry. 'You did!' said the Hatter. 'I deny it!' said the March Hare. 'He denies it,' said the King: 'leave out that part.' (11) Shortly thereafter, the King criticized the Hatter, which led a member of the jury to cheer, much to his or her detriment. (11) After the Hatter finished his testimony, the Duchess's cook testified, (11) and then the Dormouse was chased out of the court. (11) Chapter 11 ends with Alice's being called to the (11) Having suddenly grown taller, Alice knocked over the jury box as she made her way to the witness stand. The King responded by ruling that' [t]he trial cannot proceed ... until all the jurymen are back in the proper places--all.' (22) Once the jury was put back in place, the King began to question Alice: 'What do you know about this business? …

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