Jacobsen: Judge awkwardly turns lecture into abuse of power - Albuquerque Journal

Jacobsen: Judge awkwardly turns lecture into abuse of power

Joel Jacobsen

In San Diego last month, federal District Judge Roger Benitez held a probation revocation hearing. That’s a common occurrence in all our criminal courts. Addicts on probation or parole are required to stay clean. They are drug-tested frequently. But it’s hard to live a drug-free life when surrounded by all your drug-taking friends.

The probationer recognized this. As recounted in a San Diego Union-Tribune article, he told the judge he had grown up in San Diego and, when he ran into people he knew from the old days, he found himself falling back into bad habits.

The man’s 13-year-old daughter had accompanied him to court. She was sitting in the audience. The man lamented that she was “basically growing up where I grew up, so she’s encountering the same people that I grew up with that’s going to lead her into the same path that I went down.”

The article doesn’t really explain what the man was getting at, but he might have been making a case to be allowed to move away from San Diego. Typically probationers and parolees aren’t permitted to move without permission.

Whatever his reason for mentioning his daughter, it gave the judge a truly terrible idea. According to the article, Judge Benitez asked the U.S. Marshal assigned to his courtroom, “You got cuffs?” The marshal did. The judge then told the daughter to stand up.

The article continues: ” ‘Do me a favor,’ Benitez told the marshal. ‘Put cuffs on her.’ ”

According to the article, the girl started to cry. Benitez told the marshal to take her to the jury box, which would have been empty (no juries for probation revocation hearings). There, she apparently sat alone, in cuffs, crying.

The judge soon ordered the marshal to release her. He then lectured her, warning her against following her father’s path. In the course of his lecture, according to the article, he told her, “You’re an awfully cute young lady.”

The judge conceivably had a good reason for ordering the marshal to handcuff her. Maybe the Union-Tribune’s article left out the details that justified everything he said and did. Since we don’t know all the facts, let’s instead imagine a simplified, purely hypothetical situation happening right here in Albuquerque.

Picture a grizzled old police sergeant out on patrol with a raw rookie cop. They approach a school bus stop. The sergeant recognizes one of the kids standing there as the 13-year-old daughter of a drug addict. He tells the rookie to stop the squad car. The rookie does as he’s told. The sergeant then tells him to grab the girl and handcuff her. Again, the rookie obeys. The girl sobs in shock, terror, rage and humiliation. The sergeant comments on her looks. Now, let’s do a quick legal analysis of this wholly imaginary scenario. By putting the girl in handcuffs, the rookie seized her within the meaning of the state and federal Constitutions. He had no legal basis for doing so. That’s a civil rights violation. Analyzed under New Mexico law, his actions constituted battery and false imprisonment, which are torts, as well as crimes. The sergeant was his accessory. The two of them entered into a conspiracy. It’s serious stuff.

Back to real life in San Diego. It seems likely that Judge Benitez was trying to put on a “scared straight” skit from 1980s-era anti-drug efforts. In 2018, the state of Florida — hardly a bastion of wokeness, as we all know — issued a fact sheet referring to the “overwhelming research showing that Scared Straight programs are ineffective.” The fact sheet cited three meta-analytic studies, each of which found they actually increase juvenile offending.

It’s not hard to understand why. Traumatizing a child never produces desirable long-term results. And what lessons might the San Diego girl have learned from her courtroom experience? Never trust a federal judge? Don’t trust U.S. marshals, either?

The purpose of the law is to constrain power. That’s really all the law is. Without law, the powerful dominate the weak. The reason for a legal system is to replace arbitrary personal power with a system that follows established rules while aspiring to fairness.

Which is to say, the law must constrain the power of judges or it fails in its purpose. Rule by judges is not the same thing as the rule of law. Sometimes, indeed, they’re opposites.

It’s actually a heartening commentary on human nature that so many people can put on a judge’s black robe without succumbing to megalomania. But there are always a few who lose perspective, or their humanity. Respect for the rule of law requires removing judges like that from the bench.

Joel Jacobsen is an author who in 2015 retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at legal.column.tips@gmail.com.

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