Should judges act as “potted plants” or active reformers?


There is so much talk these days about the need to reform our justice system. But where does it start and what exactly do the changes look like?

Should prosecutors be allowed to go against the law and decide not to prosecute certain offenses? Should the cash bond system be abolished because poor defendants cannot afford it? If so, how can we ensure that the accused shows up for trial? In the campaign to depopulate prisons, is public safety threatened? What are the most effective diversion programs for first offenders?

Perhaps more importantly, who should answer these questions?

During the Iran-Contra Senate hearings in 1987, counsel for Colonel Oliver North objected to a hypothetical question posed to his client. Senator Daniel Inouye reminded the attorney, legendary trial attorney Brendan Sullivan, that courtroom rules do not apply to Congressional hearings.

“Let the witness object if he wishes,” said Inouye. Sullivan’s tangy response has been memorized by countless lawyers.

“Well, sir, I am not a potted plant. I am here as a lawyer. It’s my job.”

Now Michigan Chief Justice Judge Bridget Mary McCormack has echoed that quote in an essay on the involvement of judges in changing our current system.

“In the dynamics of reforming and improving the justice system,” she wrote in the Yale Law Journal, “a judge should not be a potted plant.

What is that? Traditionally, lawyers have kept a low profile, finding it unethical to argue for or against a particular position. Many judges see their job simply as enforcing laws duly passed by state or federal lawmakers.

But McCormack wrote: “Judges are particularly valuable contributors to reform efforts precisely because they are exposed to the day-to-day workings of the justice system and its flaws.

McCormack spent two years as co-chair of a Michigan state task force studying how to reduce the county’s prison population. She proudly says that the state legislature has approved many of her committee’s recommendations on how to decriminalize low-intensity offenses and divert some accused to outside programs rather than jail.

“There are no formal ethical barriers to judges working to improve the law and the justice system,” McCormack wrote. And she insisted on saying that she knows “a lot” of judges in other states who are also contributing to the reform movement.

I wonder what readers think of this idea.

It is true that judges are at the forefront of the real effect of the system on citizens and are able to point out the strengths and weaknesses of the justice system. But, historically, the judge is there to stoically examine the intricacies of the law and make a contemplative decision – period. If judges become deeply involved in changes to the very system that guides them, what happens to their impartiality – or is impartiality a nostalgic relic of the past?

There is no point in a public servant acting like a “potted plant” and just getting along while he does his duty. I yearn for the days when a judge would put public safety first, go against bad law, and lock up an obvious career criminal instead of automatically releasing the accused, as so many do. lawyers today. The action may have finally been called off – but in the meantime the streets were safer.

A judge’s knowledge of court procedures can be invaluable, but it doesn’t necessarily translate into expertise on how to run a prison, the long-term consequences of removing the cash bond, or the intricacies of the process. treatment of victims of crime. .

Many of the reforms proposed today have merit. Helping young people stay out of the system is one of them. Sentencing reform is another. But some of today’s proposals arose out of the progressive “defund the police” movement. Even judges can be tempted to jump on the bandwagon while considering re-election.

Judges should have a voice in change, but lawmakers might be better served if they give more weight to reform suggestions from civilian experts who have studied all aspects of the justice system.

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