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November 01, 2012 JUDICIAL ETHICS

Ethical Boundaries for Judges Working with Correctional Facilities

By Marla N. Greenstein

While the judge’s role in sentencing is fairly clearly spelled out by statutes and case law, increasingly judges are being asked to extend their role to interact with correctional institutions as well. Whether through creative educational programs within the institutions or by serving on advisory committees, the judicial perspective has become an important component of corrections policy development.

Judicial conferences often include presentations by those involved in corrections’ administration to explain current procedures and policies. Those who present at the conferences and field questions from judge participants may then appear as witnesses in court proceedings before the judge. So, too, tours of correctional facilities have become a regular part of many judicial training programs. Thoughtful judges will question at what point communications with corrections officials or inmates become improper ex parte communications. A New York judge had just those concerns when hearing a matter where the corrections facility manager would be a witness shortly after a tour of the corrections facility led by the witness. The New York advisory opinion found that disclosure of the tour addressed any appearance of impartiality issues and disqualification was not required (N.Y. Advisory Opinion 12-50). And another New York Advisory Opinion advised that a judge who sat on a state commission that advised on correctional facilities need not recuse in all cases involving inmate prison issues (N.Y. Advisory Opinion 09-18).

While these instances are unusual, a judge may be subject to discipline for communications that occur in a correctional facility. Washington Justice Richard Sanders was found to have violated the Code of Judicial Conduct by “asking questions of inmates who were litigants or should have been recognized as potential litigants on issues currently pending before the court” (In re Richard B. Sanders, Washington Supreme Court No. 200,271-4, Oct. 26, 2006).

Various articles in this issue emphasize the importance of judicial involvement in sentencing reform and assume the importance of judicial awareness of prison policies and rehabilitative resources. Increasingly, corrections’ allocation of limited resources has an impact on the scope of sentencing options open to judges. It is necessary for judges to be informed of corrections institutions’ practices. The best way is often to engage in dialogue with corrections officials in official settings and to tour the facilities to which they sentence offenders. With caution, this dialogue and education can enhance the criminal justice system’s effectiveness while informing individual judges of the changing realities in our prisons.

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By Marla N. Greenstein

Marla N. Greenstein is the executive director of the Alaska Commission on Judicial Conduct. She is also the past chair of the ABA Judicial Division’s Lawyers Conference. She can be reached at [email protected].