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Jenna Bachman

Professor Kill

ENGL493

November 8, 2017

Conservative Justice: A Genre Analysis of Maryland Legislators’ Testimonies for Judicial

Bills

Introduction

In most American legislatures, bills must survive a lengthy process in order to become

law. The first step in this process is a committee hearing, in which a bill is presented to

lawmakers who have experience with the policy area the bill falls under. The legislator delivers a

speech, often called a testimony, that explains what the bill is and why it should be passed.

Though others often testify in support or opposition to bills, the legislator’s speech gives the

committee members the first impression of the bill. As these members determine the bill’s fate—

if it does not receive a favorable report from the committee it is in, the bill will not be voted on to

become law—this first impression is crucial in determining the bill’s success.

Legislators are often arguing to people who have a range of ideological viewpoints, so

presenting the bill as a neutral one with positive benefits is rhetorically advantageous—it can

help prevent partisan or ideological conflict and allow the bill to move forward. As sociolinguist

Robin Lakoff argues, people who can frame their argument as “commonsense” or “mainstream”

are more likely to have their argument received positively (Lakoff 66). It consequently follows

that the arguments used by legislators in testimonies are ones they believe their audience will

perceive as “commonsense.” As a result, analyzing the rhetorical and linguistic strategies

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legislators use to frame the issue at hand in their bills can reveal how the issue is understood

culturally.

Bills presented to committees that deal with judicial matters have particularly significant

effects on the freedoms of individuals—they often dictate when the government is allowed to

punish individual citizens and how extensive that punishment should be. Both stricter and more

lenient laws regarding criminal punishment are promoted in the name of “justice,” which is often

presented as an unquestionable, static concept. Frederic Gale, however, argues that justice is

actually a contextual phenomenon that is rhetorically constructed by whoever the dominant

members of society are (Gale 5). Gale wrote his theory in 1994, and much has changed in the

judicial system since then. To apply this theory to the modern day, this paper will analyze the

following question: “What do the structure, language, and rhetorical strategies employed in

testimonies on judicial bills say about how the concept of justice is culturally understood?”

Methods and Data Set

The paper that follows will be a rhetorical and linguistic analysis of the strategies used by

Maryland General Assembly delegates in their bill testimonies to the Judiciary Committee.

Specifically, I will examine how they work to frame their proposed policies as “just.” My data

set consists of the video recordings of eight bills, three of which can be classified as “perpetrator

bills,” in that they attempt to ease the judicial process for those accused of crime, and five of

which can be classified as “victim bills” because they attempt to ease the judicial process for

victims of crime by implementing stricter criminal laws. For three of these bills, I was also able

to obtain the written copy of testimony, though the differences between writing and speaking are

beyond the scope of this paper.

Framing
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Paramount to understanding the rhetorical choices of the legislators at hand is the concept

of framing, which describes the way rhetors evoke reality by presenting aspects of an issue in

different ways and intensities (Edelman 232). In the documents discussed below, every legislator

is attempting to frame their bill as “just.” Consequently, the aspects each legislator chooses to

highlight through rhetorical and linguistic means will demonstrate what they consider to be

perceived as compatible with the framework of justice. Lakoff’s earlier discussed argument that

“commonsense” frames are the most rhetorically palatable will also be important, as it connects

the larger cultural framework of justice with the legislator’s choices—they write their testimony

in terms that they believe will be perceived as “commonsense” by their fellow legislators. As all

of these legislators are operating in the same cultural context, they can consequently draw from

culture to predict what their colleagues will perceive to be “normal.”

Genre and Culture

Thomas Helscher argues that to successfully participate in a specific genre, individuals

must adopt a “subject position” consistent with the genre’s norms—to successfully communicate

with lawyers, for instance, individuals must use the norms of legal writing (29). In doing so, they

adopt a temporary identity of “legal subject.” The legislators under observation in this paper are

adopting a subject position that I will call “judicial subject” because they are presenting their bill

to experts on judicial law. The norms individuals must adopt are not just syntactical and

organizational, however—Helscher makes clear that genres also contain a “common code of

assumptions… and concerns” (28). In other words, there are a set of cultural expectations that

inform every genre. For the Judiciary Committee hearings under study, these cultural

expectations most clearly relate to how justice is understood—the committee is expected to

decide what legislation is “just” enough to go for a vote in the full House of Delegates and have
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the chance to become law. Therefore, to induce a favorable report from the committee members,

legislators presenting their bills must appeal to what they believe to be the committee’s

understanding of justice.

Likewise, Barnet Baskerville argues that public addresses can inform audiences about the

cultural context in which they were written because the discourse speakers use tends to “mirror”

the rhetorical situation of the time (qtd. in Henry 268). Several studies have identified the ways

rhetors in the past have appealed to common cultural perceptions to make their arguments. For

example, Mary Hutton found that anti-lynching advocates often appealed to their audience’s

perception that America was a civilized nation to demonstrate how lynching violated these

standards (109). Likewise, Mary Kahl and Valerie Endress found that both anti- and pro-slavery

forces in the Virginia state legislature appealed to the common religious, moral, and patriotic

attitudes to make argue that their position was the morally correct one (68).

Using both of these concepts—that legislators are trying to appeal to what they believe

their audience understands to be justice and that rhetorical strategies serve as a mirror for the

culture they are in—this paper will examine the common rhetorical strategies of Maryland state

delegates in bill testimonies to evaluate what they reveal about the cultural perception of justice.

In doing so, I hope to spurn further research about how such perceptions may impact the

decision-making processes of judges and jurors in criminal trials, which often have life-altering

consequences for the accused.

Findings

Expertise of Law Enforcement

Gale argues that dominant social groups can often manipulate what the majority of the

populace thinks is “justice” (149). It follows that the opinions of such groups would be invoked
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in arguments to construct something as “just”—if they are universally viewed as an expert on

justice, their support can consequently be perceived as a “mainstream” source of information,

which, as discussed above, is a rhetorically advantageous way to frame an argument. The

testimonies under examination reflect law enforcement in such a position. Nearly all of the

delegates invoked the opinion of law enforcement or district attorneys, groups that execute the

law, as a way to establish their ethos. That these invocations work to build the legislator’s

credibility suggests that such agencies are culturally perceived as an authority on the question of

justice.

For example, Delegate Hettleman, in her testimony introducing a bill to update rape kit

storage procedures, says the following:

(1) I wrote to our County Executive asking for an investigation, spoke with county and
statewide sexual assault advocates, police, and crime lab officials (HB255).

That Hettleman takes the time to list so many organizations speaks to the strength she believes

they give her argument—each is so influential that they warrant an individual mention. Much

like the other testimonies where law enforcement is evoked, the above quote appears without any

surrounding argumentation that justifies its inclusion, signaling how self-evident the speaker

feels the connection between law enforcement and justice is. This sense of self-evidence evokes

Helscher’s argument that “common assumptions” help construct genre norms—the delegate’s

exclusion of any justification for including law enforcement’s opinion indicates that they

presume their audience will already understand its importance.

Though in a majority of the testimonies, the delegates are highlighting law enforcement’s

support for their bill, Delegate Sydnor’s testimony on a bill that proposed moving criminal trials

of 16 and 17-year-olds from adult to juvenile court refutes their opinion:

(2) [The] Baltimore City’s Office of State’s Attorney’s, they talk about murder and
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armed carjacking in their [opposition] testimony, this bill doesn’t go to those

offenses. Those are not included (HB471).

More than just refuting the objections of the state’s attorneys, Syndor’s words work to reframe

his bill as in line with their concerns. By saying that the bill does “not include” exemptions for

the crimes prosecutors are concerned about, Syndor reframes his bill’s provisions from opposed

to the views of law enforcement to consistent with them. As such, he further establishes his

ethos—he has understood the concerns of law enforcement and has actively worked to

incorporate them into the bill’s provisions.

Together, these trends speak to the cultural trust in law enforcement—if the delegates

were reflecting a society that believed that law enforcement agencies were corrupt, the support of

law enforcement would frame a bill as unjust, and they would not include it in their testimonies.

That these arguments appear not only in the accused bills, where it logically follows that a

balanced argument would include the “other” perspective, but also in the victim bills, where law

enforcement is typically understood to be on the same side as the victim, speaks to the far-

reaching importance of law enforcement in American culture’s construction of justice.

Personal Stories

Under the Constitution, federal courts are only allowed to hear cases where an actual

injury can be redressed—that is, they do not hear hypothetical cases about the law (Cornell

University). The bill testimonies largely seem to reflect this principle—though some included

hypothetical situations, concrete accounts of people adversely affected by the current law seem

to serve an important role, particularly in victim’s bills, where half of the testimonies included

specific stories. Though these stories evoke pathos, their primary purpose within the testimony

appears to be to demonstrate how the current law is resulting in injustice to legitimize the need

for the bill; they are most frequently used in the section of the bill where the legislator highlights
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a gap or overreach in current law.

For example, in Delegate Miller’s testimony about a bill to bar convicted felons from

purchasing antique weapons, she says the following:

(3) Bricker used this [legal] loophole… to shoot and kill his estranged 24-year-old
girlfriend, Shadé Adebayo… HB318 closes that loophole (HB318).

Miller’s use of salient details—the victim’s name and age—to describe an individual person

whose life was taken as a result of the current law allows her to create a tangible image for her

audience. No longer can those affected by the current law be described in abstract terms, but as

individual people who received an unjust result. Her use of the word loophole, which has a

negative connotation, works to characterize the current law as an unjust one that requires a

change, which Miller can then demonstrate in the salient terms she has already begun to frame

her bill with—it creates a law that would have saved this woman’s life.

Miller goes on to more explicitly connect her personal story to the bill’s exigence by

directly addressing its critics:

(4) Opponents of this bill will tell you that this is a bill in search of a problem… [but] this
is a solution to address a problem that we currently have… an ex-felon can fire a
bullet and kill an individual instantly (HB318).

The counter-opinion Miller summarizes conveys the idea that proposed solutions to justice must

derive from real situations of injustice—if the current law is creating no “problem[s],” then there

is no reason for her bill. Miller, in referring back to the individual example of injustice that

inspired the bill, is able to counter these critiques of people who believe there is no problem at

hand, demonstrating how such stories are integral to legitimizing the need for a change in policy.

Simple and Narrow Scope

Gale argues that one of the strongest influences on the American understanding of

“justice” is the Greek concept of categorical justice, the idea that justice is treating similar cases
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alike (132)—in other words, that each category of crime be punished in the same way by the law.

This idea of categorical justice is reflected in one of the common ways legislators define their

bills during testimonies—as a “simple” modification of the law, often emphasizing its narrow

applicability. Presenting the bills in this way allows the legislators to frame themselves as

working within the already established norms of the justice system, rather than calling for radical

change. As such, they are able to present their bills in the “mainstream” ways that Lakoff argues

strengthen their arguments. Furthermore, the fact that nearly every delegate evokes categorical

justice in some way suggests that they view it as an integral part of the genre, evoking the genre

expectations discussed by Helscher.

For example, Delegate Dumais, when introducing a bill to eliminate a victim’s need to

physically resist in order for rape to be proven, argues the following:

(5) This is a simple bill… designed to make it clear you don’t have to prove physical
resistance (HB429).

Here, Dumais uses of both simple and clear to describe her bill, echoing similar terms used

throughout other delegates’ testimonies. Delegate Hettleman, for instance, emphasizes the

“effective, consistent” (HB255) nature of her proposed policy, implying that it will create a

universal statute that applies regardless of situational factors, directly framing her bill in terms of

categorical justice.

Likewise, Delegate Moon, in his testimony on a bill to expunge marijuana charges older

than the time range covered by a previous bill, says the following:

(6) There is this weird gap in time… where it is entirely unclear what we were trying to
do with our mishmash of marijuana and expungement laws (HB379).

Here, Moon goes further than Dumais and Hettleman, by not only arguing that his bill is clear,

but highlighting how current law is unclear, citing the “weird gap” that creates a failure to apply
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categorical justice. The use of the colloquial term mishmash is particularly damning, as it

contradicts the seriousness expected of laws. Such contradictions stand in contrast to the cultural

expectation that the law treats every crime in the same manner—by framing his bill as the

remedy to this, Moon plays into the expectations of categorical justice to argue for the

importance of his bill’s passage.

Conclusion

An individual’s perception of justice has far-reaching implications—if they serve as

jurors, it can inform their verdict, and when they exercise their civic duty to vote, it can impact

which candidate they chose. As such, understanding how it is perceived culturally sheds insight

into how such decisions are informed.

As discussed above, many legislators seem to evoke the idea that law enforcement and

prosecutors are seen as an authority figure on justice. This carries powerful implications for all

criminal trials where a police officer provides testimony, but is particularly noteworthy for trials

in which law enforcement officers are not only the ones giving testimony, but also the ones on

trial. For years, public outrage has followed the oft-publicized killings of unarmed black men by

police officers. Yet, these events rarely result in convictions (Park). If we do in fact view police

officers as an invaluable source of knowledge on judicial matters, this could be one factor

shaping those results.

Additionally, the fact that so many legislators seek to frame their bill as “simple” and/or

“commonsense” suggests that Americans have a tendency to view justice as a straightforward

concept, carrying potentially catastrophic implications for individuals involved in complex

criminal situations. A number of mitigating factors, from abuse to mental illness, may have

influenced a person’s commission of a crime. If the jury deciding their sentence relies on a
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simplistic definition of justice and ignores these factors, the perpetrator may be sentenced to a

prison term equally as long as one of an individual who was not influenced by such factors,

arguably creating an unjust result.

Though the bills testimonies evaluated did showcase a number of bills arguing for more

lenient criminal laws, a rhetorical evaluation of these testimonies reveals that the cultural

conversation surrounding justice is still couched in conservative terms. Relying on law

enforcement officers as an authoritative judicial voice and defining criminal laws as “simple”

both promote perceptions of justice that potentially bias jurors against those accused of crimes,

carrying dangerous implications for their risk of incarceration. Though the importance of

personal stories to describe the law in individual terms could arguably be seen as a less

conservative trend, it appears to still be used in conservative ways—highlighting the pain of the

victim to spurn stricter laws. These conclusions, however, are only drawn from the processes that

create such laws. As such, further research into the rhetorical strategies used in judicial decisions

and sentencing is needed to further corroborate the idea that these patterns are widespread.
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Works Cited

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Edelman, Murray. "Contestable Categories and Public Opinion." Political Communication, vol.

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Alternatives, ed. Wendy Bishop and Hans Ostrom, Boynton/Cook, 1997, 27-36.

Henry, David. “Campaigning for Economic Democracy: Tom Hayden’s Neo-Populist Rhetoric.”

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