Mimesis Law
2 July 2020

Fault Lines Debate: When Does A Judge Get To Just Say No?

July 26, 2016 (Fault Lines) – Ed. Note: In light of Texas District Judge Kerry Neves order that he would no longer entertain plea bargains that involved deferred adjudication or probation in prosecutions involving law enforcement, unless the “victim” agreed, we charged Fault Lines contributors Josh Kendrick and Chris Seaton to debate the issue: Is it proper for a judge to categorically refuse to impose a lawful, agreed-upon sentence?  This is Josh’s argument:

Judges are all the rage, and the object of rage, these days. Whether it’s Judge Persky and his rape sentence or Judge Neves and his “no plea if the cops don’t want one” order, people are looking behind the curtain. Unbound by any silly little things like legal knowledge or the ability to question one’s own opinion, the people are questioning the wizards.

Today’s question: When does a judge get to reject a lawful, agreed-upon sentence?

It would help to start with defining the judge’s role. Depending on the case and the stage, there are infinite variations of that role. For the purposes of this debate, let’s concentrate on a narrow part of the job: when a judge is considering a sentence after a defendant has been found or pleaded guilty.

So what’s the magic behind a judge and his or her sentence? More importantly, what’s the magic behind a judge’s ability to judge? Does the judge know more about the law than the lawyers? Does the judge know more about the defendant than the lawyers? What about rehabilitation or deterrence or pure retribution? Does a judge know more about all of these things by virtue of that robe?

The simple answer is no. A judge should make sure the rules are followed, but not have any real ability to control the outcome.

And that’s the same answer to today’s question. It’s never proper for a judge to reject an agreed upon sentence if that sentence doesn’t violate the law. Otherwise, a judge steps out of the traditional judicial function and takes on a different role. In doing so, that judge undermines whatever confidence we have in the justice system.

There are several players in a criminal case. The legislative branch writes the laws. Unless the law is unconstitutional, it becomes the rule followed in the courtroom. The executive branch is the prosecutor. It represents the government’s position on the law. The defense is its own little branch, and should be representing the specific person who finds himself on the other end of a government accusation.

All of these parties have some personal bias. Each has some goal, ranging from business-like things such as efficiency, to more touchy-feely intangibles like justice. Laws typically encompass that same range.

Judges have a unique position in the courtroom. Judges are supposed to be impartial. That is probably a very difficult task, but nobody forces anybody to be a judge. Among all the players in the justice system, a judge should have no friends to reward nor foes to punish.

When a deal is reached by the prosecution and the defense, and a sentence or sentencing range is chosen by those parties, why would a judge get to impose his will on that decision? The two judges cited at the beginning of this post set up a perfect example of why you should want a judge to stay in his assigned role in the justice system.

Judge Persky gave Stanford swimmer Brock Turner a “light” sentence, according to the Internet. The Internet exploded, because…well, that’s what the Internet does. But people got really fired up when they discovered Judge Persky was set to give a defendant in a similar situation three years.

The three-year sentence faced by Raul Ramirez in Judge Persky’s courtroom was the result of a plea deal between the prosecutors and the defense. Based on an agreement between the prosecutors and the defendant, three years is the lowest sentence available.

This is a rape case, and people don’t like rape cases. People damn sure don’t like Judge Persky right now. So they call for him to reject the three-year deal and give Ramirez the same light sentence Turner got. I guess the irony in that opinion is lost on them. Or, they don’t really give a damn about Ramirez, it just feels good to have more ammunition against a judge who gave a sentence the public doesn’t agree with.

On the other end of the spectrum, in Texas, Judge Neves says no plea deals in his courtroom if a cop is the victim and the sentence doesn’t involve jail time. Unless the police agree. Then it’s okay. The Facebook gallery is applauding that decision, because police.

The three-year deal Ramirez’s lawyers worked out was a legal resolution to a case. Both parties agreed on it. The public would have Judge Persky reject it, for reasons not so clear. The cases Judge Neves is up in arms about would involve the prosecution reaching a deal with a defendant and deciding on an appropriate sentence. Both sides are happy with it. He rejects it, because it involves a police victim. People support that, because police are special.

If a prosecutor decides not to make a particular agreement in a specific case, so be it. That is why he got elected, or appointed, or chosen as prosecutor. In that role, a prosecutor has vast power, and can wield it how he wants. A defendant can always say no to a deal. A defendant can never be forced to agree to anything in a courtroom.

The parties involved in a criminal case know the most about it. They know the facts. They know the strengths and weaknesses of the evidence. They know the time that will be involved in reaching specific resolutions. They know what the case, and the resulting resolution, will look like to their boss or their victims or whoever it is they care about. The parties know the facts, and the law, and what they think needs to happen.

But the judge is different. A judge’s only say should be whether what is happening in front of him is legal. In an impartial role, a judge should always accept an agreement reached by the parties. Otherwise, that judge becomes an advocate for…something. In a place where judges are elected, maybe an advocate for the constituents. In a place where they are appointed, maybe an advocate for people who do the appointing. Or an advocate for the prosecutor. Or an advocate for the defense.

If you are okay with that, it’s only because you are currently on the right side of the judge’s partiality. But what happens when the judge switches sides, or a new judge shows up with a different side? That’s the thing about government power. Once you give it up, it’s gone. You better hope the person you gave it to always agrees with you.

If the judge is advocating for anything, it should the idea of impartiality in a courtroom. That there is a fair process and at least one person is concerned with keeping it fair. If both sides agree on an outcome, that’s fair. If a judge rejects that deal, the judge is wielding power that he doesn’t have. To borrow a sports cliché, the judge can call balls and strikes. But he doesn’t get to pick the final score.

REBUTTAL: Chris seems more forgiving than me, at least when it comes to judges. As he says, if the judge sees two sides reach a deal that makes everybody happy and then only rules on whether the sentence is “legal,” regardless of personal feelings or public opinion, our criminal justice system would be functioning at the highest level.

I agree judges may have biases and motives we can’t see. But it’s their job to put those aside and rule on the law. It’s too easy to argue the law allows them to reject plea deals. Whether or not they should, as opposed to whether or not they can, goes to the heart of the judicial function. If they aren’t at least trying to function at the highest level, what’s the point? Anybody can be mediocre.

If a judge is basing decisions on personal feelings or the public’s opinion, that is neither independence nor integrity.

4 Comments on this post.

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  • CLS
    26 July 2016 at 10:30 am - Reply


    I’m in no way forgiving of Judge Neves’ political pandering, or giving a judge unchecked authority to say “no sex offenders get plea deals in my court.” And I’m actually in agreement with you when it comes to a desire for jurists that are independent, impartial, and chock-full of integrity.

    Sadly, we don’t get that. We get human beings who put on robes and make regular decisions about life, liberty, and property. Human beings we expect to be perfect, but have flaws, biases, and perception issues just like us lawyers do. And we’ve made it legal for them to inject those faults into the plea bargain process.

    • CLS
      26 July 2016 at 10:34 am - Reply

      As an addendum to the lunacy, check out Bean v. Bailey, 280 S.W.3d 798 (Tenn., 2009), describing a rather ludicrous 25 year spat between a law firm and a cantankerous judge that made its way to the Tennessee Supreme Court.

  • Greg Prickett
    27 July 2016 at 12:39 pm - Reply

    We’ll find out soon. The first motion to recuse has just been filed by a Texas Criminal Defense Lawyer Ass’n member, and it’s not even on one of the listed offenses. It’s on a controlled substance charge, and the motion is based on the bias of the judge for police officers, in a case where it is the officer’s word against the defendant’s.

    • CLS
      27 July 2016 at 12:53 pm - Reply

      Do let us know when to bust out the popcorn, Greg?