Accountability for Judges in the Criminal Justice System
Here’s an article entitled I Set a Defendant Free And Got Blamed When He Raped Someone. This is what the article is about:
A judge explains how he decides whether to release a defendant before trial without bail — and how it can go bad.
I found reading any further into the article was a complete waste of time, but the little bit I quoted above does raise an important point. Pretty much every job includes some measure of accountability based on outcomes. Presumably our betters on the bench should also operate under the same principles. If someone actively sought out a position in which they decide whether defendants get released before trial, it isn’t too much to expect them to be pretty good at figuring out who should be released before trial and who shouldn’t.
I don’t know what the guidelines are – I try to keep my involvement with the legal system to a bare minimum. Still, I imagine a simple rule would be something like this: defendants who aren’t a flight risk, who aren’t a danger to others, and who aren’t likely to be found guilty probably don’t need to be behind bars awaiting trial. Those who are a flight risk, are likely to cause harm, or can reasonably be expected to be found guilty of a serious crime should not be walking around.
If someone can’t distinguish between these sorts of situations reasonably well, it is hard to see how they have any business making decisions about such matters. In fact, it seems pretty immoral not to have such an expectation of those who use the power of the state to make decisions that affect the freedom and well being of the rest of us.
Mike, I salute your flawless record of never having made a single mistake of judgement in your life. You are clearly entitled to cast the first stone.
Joel,
Everyone makes mistakes. But most people also are accountable for results.
Sure, judges are going to get some decisions wrong. But don’t you care about whether people making decisions of that magnitude get it right more often than random chance would dictate?
” But don’t you care about whether people making decisions of that magnitude get it right more often than random chance would dictate?”
Of course. Please show that this occurs as often as random chance would dictate. Take all the time you need.
Joel,
The taxpayer foots the bill. The “public servants” are our betters in the black robes.
I have been in the working world for a couple of decades. I have been on both sides of the performance evaluation process many times. I have yet to see anything resembling the process you describe, where an employee shows up, says “I did as well random chance would dictate,” nobody bothers to check up on performance, and the employee keeps getting paid. Show me any organization where performance evaluations work like that. As you like to state, take all the time you need.
Mike:
I never worked in an environment where the day to day issues are ironclad. I make decisions based upon the information, however complete or incomplete the information is. I formulate a reaction based upon my knowledge of my job, the situation, and the job environment. In any case, it is still an opinion of what is the best thing to do as my boss may disagree with me the same as the person on the other end.
The law is an opinion and open to interpretation. A jury decision is an opinion and a prosecutor can recommend to a judge not to follow it. The law is not the same as rules. Most cases involving criminal law never go to trial. They are plea-bargained. The defendant admits to something and the judge decides something. It is simple and the court docket is cleared rapidly once an agreement is reached.
Society gets the amount of justice they demand until it is you.
I think the qualifications for being a judge are best described here.
More seriously “Extraneous factors in judicial decisions”
Shai Danzigera, Jonathan Levavb, and Liora Avnaim-Pessoa (http://www.pnas.org/content/108/17/6889.full)
“Are judicial rulings based solely on laws and facts? Legal formalism holds that judges apply legal reasons to the facts of a case in a rational, mechanical, and deliberative manner. In contrast, legal realists argue that the rational application of legal reasons does not sufficiently explain the decisions of judges and that psychological, political, and social factors influence judicial rulings. We test the common caricature of realism that justice is “what the judge ate for breakfast” in sequential parole decisions made by experienced judges. We record the judges’ two daily food breaks, which result in segmenting the deliberations of the day into three distinct “decision sessions.” We find that the percentage of favorable rulings drops gradually from ≈65% to nearly zero within each decision session and returns abruptly to ≈65% after a break. Our findings suggest that judicial rulings can be swayed by extraneous variables that should have no bearing on legal decisions.”
Lindsay Berge,
Thanks for the comment and the link to the Danzigera et. al. paper.
Before I respond, I think it is worth reiterating that I am certainly a cynic when it comes to the legal system, and it is structure in which I have little faith. I have had the chance to observe some judges in the courtroom. It seems to me to be the kind of a job where if a person has zero interest in anything and simply wants to get paid to be entertained and put no effort into anything, they can find a niche while wearing a robe. But even with my cynicism, not to say dislike, of the legal system, something about Danzigera et. al. doesn’t quite feel right to me.
Mind you, this is not a field I know enough about to comment. But for the pattern they observe to be true, every judge out there has to be pretty nearly worthless. I can believe many. I can believe most. But even cynical old me feels there have to be some people who don black robes who care or are idealists.
Again… I have no evidence either way, and I am obviously not biased in favor of judges. But I have two decades of experience playing with data, and most of it is data relating to human behavior. And the conformity patterns, while possible, are at the outer edge of what I can believe for human behavior.
My guess (uneducated) based on scanning the paper and watching courtroom proceedings… there’s probably a pattern in how the cases are assigned. Perhaps there are a lot of rubber stamping scheduled right after breaks so witnesses from the prison services or cops or witnesses can hustle back to their jobs. But honestly, I don’t know. I hope the paper is wrong.
Mike,
“I found reading any further into the article was a complete waste of time.”
You should have read more closely: “the records showed Lewis had not been convicted of a violent offense in more than 20 years. And failure to register is not itself a violent crime.”
I doubt that you are or I would have made any different decision if we were in that judges’ place. So yes, there should be accountability, but not just based on results. If some judge egregiously releases some violent felon on a whim, and that person commits a heinous crime, hell yes sue him and hold him accountable. But you should set a high standard for malfeasance, not just that the results turned out bad. After all we are dealing with pretty unpredictable outcomes here.
Also, a lot of judges practice defensive justice (like doctors provide defensive medicine). An example of this is child sexual abuse: all you have to do is charge someone with this and they will throw the book at you and the judge will sentence you to all kinds of things. Why? because he doesn’t want to dismiss the case, no matter the facts, and take the chance that later on the defendant molests another child and he is on the front page of his morning Seattle Times. Judges have a pretty cushy job and they don’t want to give it up.
“Show me any organization where performance evaluations work like that.”
I wouldn’t know. You’re the one who invoked that standard. You provided no evidence that it is the standard of the American judicial system, although you implied that it is.
Joel,
The standard I invoked is the annual performance evaluation which just about employee in America goes through every year. Is it outlandish to expect the same standards from public “servants?”
Sammy,
As noted upthread, everyone makes mistakes. In general, a small percentage of mistakes on a difficult issue is not a cause for alarm. But bear in mind… judges are, by design, relatively immune from most job related pressures that affect ordinary Americans. As you note. Its a cushy job. Why add complete lack of accountability to the perks? Will that improve outcomes?
Accountability of judges for the entire range of their duties varies by jurisdiction. In Illinois, judges are elected and “associate judges” are appointed by the elected circuit court judges, In most cases, voters can remove them from office and associate judges can be removed by circuit court judges. In addition there is a judicial disciplinary commission with a wide range of disciplinary tools. In other jurisdictions judges are appointed pursuant to “merit” systems or simply politically by the governor and so forth. All of these systems are established by state constitutions. Don’t like them? Change your constitution. Hard? Yeah but intentionally set up that way.
If judges aren’t going to make the decisions you complain of, who do you propose should do it? Bear in mind that whoever does it has to comply with the United States constitution’s requirement that reasonable bail be set subject to an exception for clear public endangerment or risk of flight. The people detained have been charged. They have not been convicted of anything. The overwhelming majority of people detained pending trial are detained because they financially cannot make bail payment and are up on minor (usually drug) charges.
Anyone is free to complain about the legal system. Intellectually honest honest complainers suggest alternative systems. I haven’t seen that here so far.
@Mike,
You haven’t documented where judges, even judges who have made mistakes from time to time, haven’t met the standard of being right more than chance.
As I said above, take all the time you need.
Joel,
1. That isn’t how performance evaluations work
2. Did you not see the article to which Lindsay Berge linked? If it is even remotely true, then there’s all the documentation you need.
JackD,
And here I thought this post was about how the legal system can’t work without judges being accountable for outcomes. How is that not suggesting an alternative system from the one we have?
Joel,
“You haven’t documented where judges, even judges who have made mistakes from time to time, haven’t met the standard of being right more than chance.”
This data doesn’t exist. If you disagree with Mike, provide the contrary data.
And, oh yeah, take all the time you need. (Is this the new smart ass gotcha?)
Mike, saying they should be accountable is essentially a worthless comment. I’m suggesting there is a system in place that purports to hold them accountable. If you think that system is inadequate, you should offer whatever changes you think are appropriate. Bosses in business often make mistakes as do supervisors. Sometimes they get fired or demoted. Sometimes not. Maybe, just maybe, you’re complaining about the human condition.