Mimesis Law
23 September 2018

Judge Not: The Rise of Judicial Hate Over A Sentence

October 26, 2016 (Fault Lines) — The past few years have underscored a troubling trend. Judges are being held accountable not just by their local constituents, not just by those who appoint them or by courts of appeal, but instead by distant groups lobbing petitions at them with all the knowledge and understanding of a dog at a cheese tasting.

You hear it everywhere. The Twinkie defense.  Affluenza. Boys will be boys. There is a pervasive impression that America’s judges are bleeding heart idiots, buying every sad-sack sob story that wanders into the courtroom and sentencing murderers to hug therapy at the stuffed animal repository.

Most recently, the disproportionately lenient sentence given by Montana Judge John McKeon, who sentenced a man charged with raping his 12-year-old daughter to sixty days in jail and a lifetime on the sex offender registry. The victim’s mother and grandmother asked that the defendant be given minimal jail time, hoping to allow the defendant to spend more time with his sons. The defendant took a “psychosexual evaluation” that indicated that he was amenable to treatment, and prosecutors had agreed that the judge could go beneath the agreed upon 25 year sentence if the evaluation turned out properly.

That’s not to say that the judge made the right decision. Hell, even known criminal-lover Scott Greenfield called the sentence “outrageously lenient” and a poor balance given the interests of general deterrence and retribution. But sentencing is one of the hardest things that judges have to do. Often, a judge is simply forced to punish someone harshly, because the law mandates it. At other times, judges find themselves at terrible liberty, trying to find some arbitrary amount of time that satisfies the community’s need for justice without crippling the defendant for life or punishing those around him. Sentencing is, by its nature, both arbitrary and difficult.

Yet the fury has been extreme. People have called for the judge to be “punished.” There is no doubt that in the hubbub that erupts after this sentence, he will never again make an evidentiary ruling in a sexual assault case without feeling tempted to err on the side of the State. Every ruling for the defendant will become a political liability. And it can’t help but spill over to other judges who might now find it difficult to make rulings for unpopular or repugnant litigants.

It would, of course, be ridiculous to claim that judges are some sort of apolitical class of public servants. Judges are either appointed by their political patrons or elected to their office, increasingly often with the help of expensive advertising campaigns funded by outside groups.

Nor is this some sparklingly new phenomenon– Marbury v. Madison,   one of the most important cases of our then-new Republic, dealt with whether Thomas Jefferson could be forced to deliver appointments made by John Adams for new federal judges (the so-called midnight judges). John Marshall, who had been Adams’ secretary of state and was now the Chief Justice of the United States Supreme Court, threaded the needle perfectly. He ruled that Thomas Jefferson was wrong not to deliver the appointments, that he was failing in an essential duty, but also that the Court could not force him to act. It was a master stroke—Jefferson couldn’t defy an opinion without an order. It was also a nakedly political use of his judicial power.

But there is something ominous going on. Judges, feeling suddenly exposed by the possibility of negative ad campaigns or becoming virulently hated by the internet, are being affected by all this transparency, and not necessarily in a way that benefits the public. In one recent study by Emory researchers, it was found that as more ad dollars poured into state appellate court elections, the winners were getting less and less likely to rule for criminal defendants.

The public is almost certainly happy about these recent developments. Both progressives and conservatives can cheer a movement to make judges sentence more harshly, either to combat rape culture or to reflect the inherent incorrigibility of criminals. But we risk getting rid of good judges when we let popular outrage boil them down to just one unpopular decision. As capital defenders say, everyone is better than the worst thing they’ve ever done. And there are plenty of terrible judges sentencing everyone who comes before them to the maximum without risk of repercussion.

Maybe the problem here is simply that we think if the judge just pulls out the right magic number, somehow, things will be better. As if prison time will heal the hurt or revive the fallen. But it doesn’t. All it can do is give us a sense of justice. When that sense of justice falters, when the judge makes the wrong call, the cure isn’t to toss the judge. It’s to create a meaningful system of review for sentencing—hopefully one with a ceiling, as well as a floor.

It’s to create a meaningful system of review for sentencing–one that gives an avenue for disagreement more reasonable than simply calling for impeachment. If sentences are to reflect our collective sense of justice, then it might be okay once in a while to leave it in the hands of more than just one judge. That’s certainly better than to put it into the hands of the mob.

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  • bacchys
    26 October 2016 at 12:22 pm - Reply

    We never see “naked fury” at a judge who lets in junk science that leads to a wrongful conviction, or who sits silently by while a prosecutor lies about meeting his Brady obligations or commits some other misconduct.

    Better a hundred innocents rot in prison than let any go free…