The essence of nomocracy, the rule of law, is limitation of the discretion
of officials, and providing a process by which errors or abuse of discretion
can be corrected. Some discretion is unavoidable, because law cannot
anticipate every eventuality or how to decide which law may apply to a given
situation. What guidance the law cannot provide is supposed to be provided
by standard principles of justice and due process, reason, and the facts of
each case. Ideally, officials should be mutually consistent and
interchangeable, making similar decisions in similar cases, so that no one
can gain an undue advantage by choosing the official or exercising undue
influence on the official or on the process he operates. We trust officials
to exercise such discretion as they have with wisdom, justice, and
competence, to avoid government that is arbitrary, insolent, discriminatory,
prejudiced, intrusive and corrupt.
Within the public sector, discretion can be exercised by legislative,
executive, or judicial officials. Within the private sector, discretion may
be exercised by private officials, such as agents, trustees or corporate
officers, who are in principle subject to the supervision of the courts. The
focus here is on judicial discretion, and the abuse of it. It will not
discuss every area of judicial discretion.
The first major check on the discretion of judges was the jury. A judge,
holding office over the course of multiple cases, and selected by
appointment or election, is susceptible to undue influence. A jury, chosen
by sortition, or lot, for a single case, just before the case, is less
likely to be corrupted, and having multiple jurors render verdicts
collectively provides a check by each on the others. What they might lack in
knowledge of the law is offset by their connection to the nonlegal
environment in which most people subject to the law must operate.
In courts that try to save time and money by not using juries, such as
family courts in some states, complaints about abuse of judicial discretion
have led to calls for juries to decide questions of custody, visitation,
child support, and the distribution of marital property.
Judges who impose lenient sentences, to avoid prison overcrowding and the
early release of violent offenders, often provoke demands for mandatory
minimum sentences or sentencing guidelines that reduce their discretion to
do things like impose reduced sentences on defendants thought to be
remorseful or unlikely to commit another offense.
Most complaints of abuse of judicial discretion, and calls to limit it with
more laws, concern questions of policy or equity. But there is another broad
category, which concerns constitutional questions of due process and civil
rights. This is too large a field to discuss adequately in a short article,
so only a few of the more important kinds of judicial discretion that are
often being abused will be presented.
Habeas corpus and quo warranto
The right of any person to petition for release of a prisoner if the
official holding him does not prove sufficient authority to do so. A writ of
habeas corpus is a subspecies of a writ of quo warranto, the right to have
an official cease or refrain from some action unless he proves sufficient
authority for it. Only the first is explicitly protected in the U.S.
Constitution, but the latter is implied by the due process and nondelegation
clauses and amendments. The principle involved is the presumption that an
official lacks authority for an action unless he can prove he has it, so
that a petition for either writ does not imply a right to oyer and terminer
for the petitioner. That right belongs to the respondent. If the response is
inadequate, or the court does not have time for oyer and terminer, then its
duty is to grant the writ. The problem is that judges, especially federal
judges when the respondent is a federal official, are too often failing to
act on habeas petitions, on various pretexts, thereby reversing the
presumption in favor of the official and his actions. Petitions for writs of
quo warranto are systematically ignored or dismissed. There is no appeal
from such inaction. Law provides petitioners only the option of trying again
with another judge, thereby encouraging forum shopping. Complaints of
judicial misconduct for such denial or inaction are also being
systematically ignored. This should not really be called an abuse of
judicial discretion because by law a judge has no such discretion, but it
has emerged as a practice that undermines all the other protections of the
Constitution.
Jury Selection
Both petit and grand juries are supposed to be selected at random from the
community, a process called sortition, with some screening out of jurors who
cannot be impartial or who have some hardships or critical duties. However,
judges too often abuse their discretion to pack juries with persons who are
partial in various ways. One way is to demand that jurors take an oath to
"follow the law" as given by the judge. That enables the judge to
misinstruct the jury as to what the law is.
Trial jury access
In the early Republic, the standard practice of due process was to argue all
issues of law in the presence of the jury, which enabled them to learn what
the legal issues were along with the judge, that is, the presiding
magistrate, and we can presume that this practice was part of what the
Founders meant by "due process" in the Constitution. However, judges have
abused their discretion by adopting the practice of requiring pleadings to
be submitted to them by the litigants in writing, and not allowing copies to
be provided the jury, nor allowing the attorneys to make legal arguments in
the presence of the jury. This has given judges control over the trial in
ways that largely subverts the protections that the jury is supposed to
provide, because it does not allow jurors to hear argument, in a criminal
trial, that the court does not have jurisdiction, or that the charge is not
authorized by a statute, or the statute by the state or federal
constitution, or that the statute is misapplied to the facts of the case, or
that the rights of the accused were infringed by investigatory,
prosecutorial, or judicial misconduct.
Grand jury access
The problem is often revealed by the old prosecutor's joke that he could get
the grand jury to "indict a ham sandwich". Originally, in the early
Republic, there were no public prosecutors. Criminal prosecutions were
conducted by private attorneys, either paid by the victims, by subscription,
or appointed by the judge to serve pro bono. When public prosecutors began
to be appointed, they soon assumed an undue influence over grand juries,
with the support of abuse of judicial discretion by the judges. This is
aided by a lack of civic education of the public concerning the duties of
grand jurors, or by packing grand juries with cronies of the judicial
establishment.
Prosecutor selection
In almost every state and in the federal courts it is within judicial
discretion for the judge to grant access to the courts to any person to
conduct a criminal prosecution, but except in Texas, such petitions are
systematically ignored or dismissed. This is a special problem when the
suspects are public officials, cronies of the prosecutor or judge.
Contempt & coercive detention
There is no power delegated in the U.S. Constitution for a federal judge to
prosecute anyone for contempt of court, except on federal territory, under
Art. I Sec. 8 Cl. 17 or Art. IV Sec. 3 Cl. 2, or to imprison someone
indefinitely to coerce him into doing something. It was anticipated by the
Founders that all federal courthouses would be sited in federal enclaves,
but not all of them are, and the orders and contempt actions are often
extended beyond the territorial limits of such enclaves, where federal
courts have no such jurisdiction.
Disbarment
Although the original stated purpose of licensing and delicensing lawyers
was to protect the public from dishonest or incompetent ones, licensing and
the influence judges have over disbarment is too often abused to suppress
lawyers who might challenge their abuses.
Lawyer protection
The other side of controlling lawyers with threats of contempt or disbarment
is systematic protection of them from being sued, by abusing judicial
discretion to punish persons who might have the temerity to do so, and their
lawyers if they can get any to represent them. Violators of this "unwritten
law" find all their motions thereafter being ignored or denied, regardless
of merit.
Absolute immunity
It is appropriate for judges to have a limited immunity from being sued for
their judicial decisions if they are merely the result of error or
incompetence. The remedy for that is appeal to a higher court. The problem
is that judges abuse their judicial discretion to protect themselves and
other judges from civil and criminal liability for being unduly influenced,
such as by bribery, intimidation or cronyism.
Discrimination against pro se litigants
Instead of accommodating to the lack of legal knowledge of lay persons who
either cannot afford a lawyer, or who don't trust lawyers who are subject to
the control of the courts, judges and court personnel systematically
discriminate against litigants who appear pro se or in propria persona,
often dismissing their petitions or motions out of hand, regardless of their
merits. That is abuse of judicial discretion.
Affirmative defense
Judges have adopted the practice in criminal trials of requiring the defense
to make a motion for affirmative defense, which could be a defense like
self-defense that admits to the facts and argues the actions were justified,
or which seeks to prove someone else committed the crime. The original
rationale for this was to provide the prosecution due notice so they can
prepare their response. It is normally granted, but in the 1994 Davidian
trial it was denied, much to the surprise of defense attorneys, who planned
to argue self-defense. To prevent the defense from submitting an offer of
proof, which would be grounds for reversal on appeal, the judge agreed, if
they would refrain from doing so, to include an instruction to the jury that
they could consider self-defense, but he would not allow argument and
evidence of self-defense during trial. Thinking their best chance lay in
agreeing to that, the defense attorneys went along with this abuse of
judicial discretion. However, other instructions misled the jury into
convicting some of the defendants on sentencing enhancements, even they they
acquitted all of them on the base offenses, and the judge sentenced them for
the enhancements as though they had been found guilty of the base offenses.
Disallowance of mens rea defenses
In criminal cases, by original constitutional standards, the elements of
proof of a criminal charge are mens rea, actus reus, concurrence, causation,
and harm. The first, mens rea, is "criminal intent", and judges are allowing
criminal prosecutions to proceed without proof of it, especially when the
statutes prohibit acts that are malum prohibitum instead of malum in se. In
this judges are aided by abuse of discretion by legislators, but it is still
abuse of discretion.
Our efforts depend on donations from people like you.
Directions for donors are at:
Constitution Society
7793 Burnet Road #37, Austin, TX 78757
Phone: 512/374-9585
jon.roland@constitution.org"
