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Abuse of Judicial Discretion

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  • Legalbear
    The following article is still being written, and is expected to become much longer, but I thought you would enjoy it in its present state, and offer some
    Message 1 of 1 , Jun 1, 2003
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      The following article is still being written, and is expected to become
      longer, but I thought you would enjoy it in its present state, and offer

      some suggestions for further development.


      Abuse of Judicial Discretion

      Jon Roland

      The essence of nomocracy, the rule of law, is limitation of the
      of officials, and providing a process by which errors or abuse of
      can be corrected. Some discretion is unavoidable, because law cannot
      anticipate every eventuality or how to decide which law may apply to a
      situation. What guidance the law cannot provide is supposed to be
      by standard principles of justice and due process, reason, and the facts
      each case. Ideally, officials should be mutually consistent and
      interchangeable, making similar decisions in similar cases, so that no
      can gain an undue advantage by choosing the official or exercising undue

      influence on the official or on the process he operates. We trust
      to exercise such discretion as they have with wisdom, justice, and
      competence, to avoid government that is arbitrary, insolent,
      prejudiced, intrusive and corrupt.

      Within the public sector, discretion can be exercised by legislative,
      executive, or judicial officials. Within the private sector, discretion
      be exercised by private officials, such as agents, trustees or corporate

      officers, who are in principle subject to the supervision of the courts.
      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,
      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
      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
      early release of violent offenders, often provoke demands for mandatory
      minimum sentences or sentencing guidelines that reduce their discretion
      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
      more laws, concern questions of policy or equity. But there is another
      category, which concerns constitutional questions of due process and
      rights. This is too large a field to discuss adequately in a short
      so only a few of the more important kinds of judicial discretion that
      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
      an official cease or refrain from some action unless he proves
      authority for it. Only the first is explicitly protected in the U.S.
      Constitution, but the latter is implied by the due process and
      clauses and amendments. The principle involved is the presumption that
      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
      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
      duty is to grant the writ. The problem is that judges, especially
      judges when the respondent is a federal official, are too often failing
      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
      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
      has emerged as a practice that undermines all the other protections of

      Jury Selection

      Both petit and grand juries are supposed to be selected at random from
      community, a process called sortition, with some screening out of jurors
      cannot be impartial or who have some hardships or critical duties.
      judges too often abuse their discretion to pack juries with persons who
      partial in various ways. One way is to demand that jurors take an oath
      "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
      issues of law in the presence of the jury, which enabled them to learn
      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
      abused their discretion by adopting the practice of requiring pleadings
      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
      the presence of the jury. This has given judges control over the trial
      ways that largely subverts the protections that the jury is supposed to
      provide, because it does not allow jurors to hear argument, in a
      trial, that the court does not have jurisdiction, or that the charge is
      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
      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
      or appointed by the judge to serve pro bono. When public prosecutors
      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
      grand jurors, or by packing grand juries with cronies of the judicial

      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
      prosecute anyone for contempt of court, except on federal territory,
      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
      Founders that all federal courthouses would be sited in federal
      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.


      Although the original stated purpose of licensing and delicensing
      was to protect the public from dishonest or incompetent ones, licensing
      the influence judges have over disbarment is too often abused to
      lawyers who might challenge their abuses.

      Lawyer protection

      The other side of controlling lawyers with threats of contempt or
      is systematic protection of them from being sued, by abusing judicial
      discretion to punish persons who might have the temerity to do so, and
      lawyers if they can get any to represent them. Violators of this
      law" find all their motions thereafter being ignored or denied,
      of merit.

      Absolute immunity

      It is appropriate for judges to have a limited immunity from being sued
      their judicial decisions if they are merely the result of error or
      incompetence. The remedy for that is appeal to a higher court. The
      is that judges abuse their judicial discretion to protect themselves and

      other judges from civil and criminal liability for being unduly
      such as by bribery, intimidation or cronyism.

      Discrimination against pro se litigants

      Instead of accommodating to the lack of legal knowledge of lay persons
      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
      merits. That is abuse of judicial discretion.

      Affirmative defense

      Judges have adopted the practice in criminal trials of requiring the
      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
      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
      to argue self-defense. To prevent the defense from submitting an offer
      proof, which would be grounds for reversal on appeal, the judge agreed,
      they would refrain from doing so, to include an instruction to the jury
      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
      acquitted all of them on the base offenses, and the judge sentenced them
      the enhancements as though they had been found guilty of the base

      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,
      and harm. The first, mens rea, is "criminal intent", and judges are
      criminal prosecutions to proceed without proof of it, especially when
      statutes prohibit acts that are malum prohibitum instead of malum in se.
      this judges are aided by abuse of discretion by legislators, but it is
      abuse of discretion.

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