Judicial independence goes to the heart of the democratic principles that support our liberty. It has been consistently eroded by attacks from those with political motivations, occasionally leading to the direct denigration of judges. This should never be allowed. It is time to come back to our core democratic principles - what we have stood for since the founding of our nation.
In October 2007, returning from Japan following an International Bar Association meeting, a journalist from Singapore told me, “When the United States of America denies human rights, as it is doing right now, the whole world is affected. The death penalty, inhumane sentences, renditions, holding of prisoners without counsel or trial, justifies similar abuses throughout the world.”
A Czech lawyer similarly concerned told a class of attorneys I was teaching how his grandfather had a radio in the cellar, where he used to listen to the forbidden Voice of America broadcasts. He said his grandfather would have been imprisoned if he had been caught listening to the democratic principles we then were teaching Eastern Europeans. He commented, “Now we need to beam the voice to you from East Europe. We need to help the U.S. find its way home.”
Perhaps nowhere is judicial independence more important and vital to a constitutional democracy than within the sphere of the criminal justice system. However, this core principle that Supreme Court Chief Justice William Rehnquist referred to in an April 1996 speech as “one of the crown jewels of our system of government” increasingly is under attack, often with political motivations, disingenuous aims, and/or an utter lack of foresight and common sense.
The Genesis of the Problem
The erosion of judicial independence began with Congress’s creation of the federal sentencing guidelines and statutory mandatory minimum sentences, in effect removing judicial discretion and replacing it with a one-size-fits-all approach to criminal justice. This handcuffed judges and created an inhumane and unworkable model. As any judge or lawyer involved in the criminal justice system knows, not all cases are the same and neither are all defendants. Therefore, it would seem to be more judicious for a judge, possessed of all the facts, to make a ruling or decision based on all factors, with his or her knowledge and discretion, rather than trying to fit all defendants into the same box. In addition to the federal sentencing guidelines, we have also seen serious challenges to habeas corpus in recent years. It is these guidelines and corresponding punishments that have created an unsustainable theater of incarceration, devastation, injustice, and a blurring of the separation of powers.
One reason for this frightening trend is that it always has been more politically expedient to be viewed as one who is tough on crime rather than one who takes the time and effort to truly explore multiple options and remedies. In this regard, while American incarceration rates continue to skyrocket, Senator Jim Webb of Virginia should be commended for his stand on this issue and his dedication to reevaluating it in the face of political objection. Webb has realized that in addition to the great expense that excessive and prolonged incarceration creates, an inherent injustice in disproportionate mandated sentencing also exists. This is most easily recognizable in the long-term prison sentences required for minor nonviolent drug offenses.
By sentencing nonviolent drug-related offenders and the mentally ill to unjust prison terms, we as a society are creating a perpetual and growing underclass. Because, rather than getting the help these persons may need, we are creating a class that not only has now been exposed to serious and violent criminals, and criminal activity, but also will now have a very difficult time finding employers willing to hire them because of their criminal records, thus leading to a heightened potential for recidivism. It is this human element that is present in each and every case before a court. As Judge John S. Martin Jr., formerly a federal district judge in Manhattan, said: “Every sentence imposed affects a human life and, in most cases, the lives of several innocent family members who suffer as a result of a defendant’s incarceration. For a judge to be deprived of the ability to consider all of the factors that go into formulating a just sentence is completely at odds with the sentencing philosophy that has been a hallmark of the American system of justice.” John S. Martin Jr., Opinion, Let Judges Do Their Jobs , N.Y. Times, June 24, 2003. Martin has since retired from the bench in response to what he views as an unjust criminal justice system, stemming from the infringement by Congress on judicial independence.
Currently, the United States is the world’s largest jailer. Accord ing to the Department of Justice’s Bureau of Justice Statistics, approximately 2.3 million people populate America’s prison system. That means that about one out of every 100 American adults is in prison. That is a staggering figure, especially when you consider that China has approximately 1.5 million people behind bars, out of a population of over 1.3 billion. Why is this? Are Americans that much more prone to criminal activity? Or do we just incarcerate many more people (because of statutorily mandated prison terms) than is necessary or just? This does not even take into account the racial and social inequities that have been well documented in this short-sighted attempt by Congress to infringe upon the judiciary, the implications of which are far-reaching and have the ability to make judges feel as if they are, as Supreme Court Justice David Souter termed it, “instruments of injustice.”
In 2000, John Steer, vice chair of the U.S. Sentencing Commission, testified before the House Governmental Reform Subcommittee on Criminal Justice, Drug Policy, and Human Resources that in 1999, African Americans made up 30 percent of those subject to five-year mandatory sentences, 43 percent of ten-year mandatory sentences, 60 percent of twenty-year mandatory sentences, and 80 percent of mandatory life sentences. These are just some of the people incarcerated under color of law.
Descending the Slippery Slope
In addition to mandatory minimum sentencing and sentencing guidelines, judicial independence has been under increasing attack for what politicians and the public may refer to as “judicial accountability.” The idea is that judges must be made personally accountable for their rulings, thus bringing them under control of the prevailing political winds. This attempt to erode judicial independence and intimidate judges into ruling a particular way has taken several forms. The Justice Department’s announcement in 2003 that it would begin compiling data on judges who departed from the federal sentencing guidelines, essentially creating a jurist blacklist, was one. Others that have appeared recently can be found on state ballot initiatives and constitutional amendments, such as judicial term limits to be applied retroactively, redistricting, or even the abolition of judicial immunity from lawsuits. There has also been a disturbing trend characterized by interest groups pouring large sums of money into state judicial elections, in attempts to influence them. With 95 percent of cases being handled by state courts rather than by federal appointed judges, and with at least 39 states electing some of their judges, the ramifications for justice are serious.
The issues of human rights violations concerning imprisoned foreign citizens at Guantanamo Bay will hopefully end via an executive order by President Barack Obama. We must retain a collective memory that using the term “enemy combatants” to describe human beings was done without any judicial hearings or constitutional grounds. Let us remember that the executive branch denied human rights afforded by the Geneva Conventions, the Uniform Code of Military Justice, and the U.S. Constitution.
And we must also remember that American citizens’ constitutional rights are being denied as well. Tom Cahill, in his book A Saint on Death Row , relates the compelling story of Dominique Green, a young African Ameri can who was executed on October 26, 2004. I met Green in 2000 at the request of a peace and justice organization in Italy called Sant’Egidio. They asked me to visit him and were incredulous that he could have no legal redress. “Wasn’t habeas corpus open to him?” “Shouldn’t the U.S. Supreme Court put a stop to the regular executions in Texas?” I became one of Green’s lawyers but came to the case too late to save his life. I was at least able to keep him alive long enough for him to read No Future Without Forgiveness by Archbishop Desmond Tutu, and for Tutu to visit Green on death row, where Tutu declared Green to be “a remarkable advertisement for God.”
The victim’s family pleaded for his life, having doubts about his conviction from the very beginning. The Houston police chief even called for a moratorium on executions, as there existed a likelihood that favorable evidence existed in the Houston crime lab, which was in shambles. Texas executed him notwithstanding other issues of constitutional magnitude that were never available for argument because the Texas courts foreclosed on them. On the night of Green’s execution, the Fifth Circuit overturned a stay issued by Judge Nancy Atlas, and the U.S. Supreme Court upheld the Fifth Circuit.
Cahill relates that “[s]ince 1976 when a more conservative U.S. Supreme Court once again gave the go-ahead to state executions . . . Texas has succeeded in executing 406 people, all poor, most from minorities.” Tom Cahill, A Saint on Death Row (forthcoming 2009). The independence of the judiciary is encroached upon in the most significant way if a judge has no ability to grant the ancient writ of habeas corpus because Congress has abridged the right of review.
Judges Voice Their Dissent
Can judges speak out against injustices? Both Justice Anthony Kennedy and Justice David Souter have done so, among others. Speaking before a congressional panel on March 13, 1997, Kennedy stated, “I do not think judges should have their sentencing discretion controlled by a mandatory sentence.” Justices Blast Minimum Sentences , Associated Press, Mar. 14, 1997, www.freechantal.com/mediadocs/19970514ap.htm. In agreement, Souter stated that many federal judges “simply believe that ultimately they become instruments of injustice.” Id. Certainly in capital cases this is true. The Supreme Court admitted in Herrera v. Collins , 506 U.S. 390 (1993), that the execution of the innocent is inevitable. If that is so, have judges indeed become instruments of injustice in death penalty cases?
The need for judges of courage will never end. Justice John Paul Stevens showed strength when he authored the Hamdan opinion. 548 U.S. 557 (2006). In People v. Vilardi , 76 N.Y.2d 67 (1990), New York’s Judge Judith S. Kaye wrote the majority opinion that gave defendants greater rights to accuse the prosecution of withholding evidence than the U.S. Supreme Court currently provides.
As members of the judiciary who hear criminal cases, we can either be remembered for “going along to get along” or we can put our heads above the parapet. Judicial independence is a fundamental right of all; men and women have fought and died for it. It is the duty of the judiciary to maintain its independence.
Edmund Burke is credited with saying “All that is necessary for evil to triumph is that good men do nothing.” Let us not remain silent. Let us remember the ancient law of Ireland, the Brehon Laws, which enunciated that the first duty of a judge is to inquire, to speak out - not to remain silent.