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April 01, 2002

Tough on Crime/Soft on Crime: Redefining the Labels

by H. Lee Sarokin

If there were a dictionary definition for "soft on crime," it probably would read: judge, one who protects the constitutional rights of persons accused of crimes; grants motions to suppress evidence or confessions; grants motions for new trials and writs of habeas corpus after conviction. The corollary definition for "tough on crime" would probably be: judge, one who denies all such relief.

First, it is important to recognize that these labels are purely a political creation. The media may disagree with a particular ruling, but no reputable media representative ever characterizes a judge this way, except in quoting a politician. Elected officials who are sworn to uphold the Constitution routinely criticize judges for enforcing it. This, despite the fact that the criticism defies all logic. What judge, no matter how liberal, wants to see a guilty defendant go unconvicted or unpunished?

Although my ruling in the Rubin "Hurricane" Carter case has received the most publicity, another of my cases is far more significant on this issue. I was roundly condemned by conservative politicians and thoroughly examined during my Senate confirmation hearings regarding my decision to grant a writ of habeas corpus to James Landano. Not only was I accused of being "soft on crime," but also my decision was used against Senator Diane Feinstein (D-Cal.) in her campaign for reelection (some 3,000 miles away). Television ads appeared saying that she had "VOTED TO CONFIRM A JUDGE WHO FREED A COP-KILLER." Following my ruling and long after the election, Mr. Landano eventually was retried and subsequently acquitted of all charges.

It is easy to rule in favor of the prosecution in every instance. Only two persons—the defendant and his lawyer—are upset by the ruling. It takes far more courage to face the wrath of the prosecution, the victims, the victim’s family, and the public by ruling in a defendant’s favor when the law requires it. Those judges who are willing to absorb or, more importantly, ignore that wrath should be praised, not condemned.

The constant assertion of judges being "soft on crime" has had a debilitating effect on the judiciary and the public. Judges facing election or hoping for elevation to a higher court may hesitate to rule in favor of criminal defendants. Indeed, judges running for reelection have been known to tout the number of convictions or even death penalties imposed during their tenure as though that were some measure of their qualifications!

Confidence in the judiciary has been eroded, and the public has come to believe that there are judges intent on setting criminals free. I recommend that our elected officials all read the biography of John Adams to be reminded of what is important in this country. The Bill of Rights was meant to protect the innocent; the fact that it may occasionally benefit the guilty is no reason to abandon it or condemn its application. Judges who uphold the Constitution are not "soft on crime." Indeed, if being "tough on crime" means refusing to enforce the Constitution when the facts and law require it, then those judges pose the greater danger to our democracy.

H. Lee Sarokin

H. Lee Sarokin is a retired judge. He served on the U.S. District Court for the District of New Jersey and the U.S. Court of Appeals for the Third Circuit.