Should judges act as 'potted plants' or active reformers? - Albuquerque Journal

Should judges act as ‘potted plants’ or active reformers?


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

Should prosecutors be allowed to buck the law and decide not to prosecute certain offenses? Should the system of cash bail be scrapped as poor defendants cannot afford it? If so, how do we guarantee the accused shows up at trial? In the drive to depopulate prisons, is public safety in jeopardy? What are the most successful diversion programs for first-time offenders?

Maybe most importantly, who should answer these questions?

During the Senate’s 1987 Iran-Contra hearings, Col. Oliver North’s attorney objected to a hypothetical question his client was asked. Sen. Daniel Inouye reminded the lawyer, the legendary litigator Brendan Sullivan, that the rules of the courtroom did not apply to congressional hearings.

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

“Well, sir, I am not a potted plant. I’m here as the lawyer. That’s MY job.”

Now, the chief justice of Michigan, Judge Bridget Mary McCormack, has reprised that quote in an essay about getting judges involved 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’s that? Traditionally, jurists have kept a low profile, believing it unethical to advocate for or against any particular position. Many judges see their job as simply applying the laws that were duly passed by state or federal legislators.

But McCormack wrote, “Judges are uniquely valuable contributors to reform efforts precisely because they are exposed to the day-to-day workings of the justice system and the flaws within it.”

McCormack spent two years as co-chair of a Michigan state task force studying how to reduce county jail populations. She proudly says the state legislature agreed with many of her committee’s recommendations for how to decriminalize low-level offenses and divert some defendants to outside programs rather than prison.

“There is no formal ethical obstacle to judges working toward the improvement of the law and the justice system,” McCormack wrote. And she made it a point to say she knows of “lots” of judges in other states who are also contributing to the reform movement.

I’m wondering what readers think about this idea.

It is true, judges have a front-row seat to the real-world effect the system has on citizens, and are in a position to point out the strengths and weaknesses of the court system. But, historically, the judge is there to stoically consider the fine points of law and issue a contemplative ruling – 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?

It is no use to have a public servant act like a “potted plant” and simply go along to get along as they discharge their duty. I long for the days when a judge put the public’s safety first, would buck a bad law and lock up an obvious career criminal instead of automatically releasing the defendant, as so many jurists do today. The action may ultimately have been overturned – but in the meantime the streets were safer.

A judge’s knowledge of courtroom procedures can be invaluable, but that doesn’t necessarily translate into expertise on how to run a prison, what the long-term consequences of doing away with cash bail will be, or the finer points of dealing with crime victims.

Many of the reforms being floated today have merit. Helping young people stay out of the system is one. Sentencing reform is another. But some of today’s proposals are borne of the progressive “defund the police” movement. Even judges can be tempted to jump on a popular bandwagon while eyeing reelection.

Judges should have a voice in change, but lawmakers might be best 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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