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January 18, 2011

Should there be an age at which judges are no longer allowed to sentence defendants?

The provocative question in this title of this post is inspired by this provocative and effective articleby Joseph Goldstein at Slate headlined "The Oldest Bench Ever: Extreme aging in the federal judiciary — and the trouble it causes."  The piece begins with a story of an 84-year-old federal judge appearing very confused when imposing a life sentence on a drug defendant, and it includes these statistics and stories:

Life tenure, intended to foster judicial independence, has been a unique feature of the federal bench since the Constitution was ratified in 1789. Back then, the average American lived to be about 40 and the framers didn't express much worry about senile judges. "A superannuated bench," Alexander Hamilton said, is an "imaginary danger."

No longer. Today, aging and dementia are the flip side of life tenure, with more and more judges staying on the bench into extreme old age.  About 12 percent of the nation's 1,200 sitting federal district and circuit judges are 80 years or older, according to a 2010 survey conducted by ProPublica. Eleven federal judges over the age of 90 are hearing cases—compared with four just 20 years ago.  (One judge, a Kansan appointed by President John F. Kennedy, is over 100.)  The share of octogenarians and nonagenarians on the federal bench has doubled in the past 20 years.  The demographics of the federal bench have no analogue on the state courts, where judges mostly occupy their office for a term of fixed years and generally have mandatory retirement ages, often in their 60s or 70s....

For many older judges, no doubt, experience is a virtue.  "My memory is not as acute as it was, [but] principles, I know, and my judgment is the same — it may be better," said U.S. District Judge Jack Weinstein, a Brooklyn legend at 89 and one of the nation's most respected legal minds.

But judges of advanced years are clearly at increased risk for trouble with memory and cognition.  According to the Alzheimer's Association, about 13 percent of Americans over 65 have Alzheimer's and nearly half of those 85 and older develop it or suffer from dementia....

Frank Easterbrook, chief of the Chicago-based 7th Circuit U.S. Court of Appeals ... has [in the last four years] arranged for two colleagues to see neurologists. One was diagnosed with Alzheimer's and retired. The other insisted on returning to the bench after a stroke, but because he had difficulties "with executive function," Easterbrook said, he removed all criminal cases from the judge's docket.  Easterbrook has even publicly called on lawyers to contact his chambers directly if they think a judge is exhibiting symptoms of dementia — a rare move by the bench to enlist the public in monitoring judges.

Why do judges outstay their welcome?  Longer life spans and attachment to the job play a role.  Another factor, judges and experts say, is that in some ways the job has gotten easier.  Until the 1930s, district and circuit court judges functioned without law clerks. Now even district court judges get two apiece, and they can pick up the slack as a judge's output diminishes.  A 2005 study offers a sense of just how long judges are holding on: More than nine out of 10 district court judges die within a year of retiring fully....

And for nearly a century, Congress has invited judges to work less, starting at age 65, instead of retiring.  A judge who goes on senior status, as the arrangement is called, still draws a salary and works as much or as little as he or she likes; meanwhile, the president can nominate a new judge to the take the spot the senior-status judge has vacated, at least on paper. It's a system meant to encourage elderly judges to make room for younger ones, without giving anybody the boot....

Judges facing age-related mental decline are prone to make rookie mistakes that harm the rights of the people before them. Judge John Shabaz of the federal court in Madison, Wisc., had a reputation as a strict sentencer who resolved cases at a brisk pace.  But when he reached his mid-70s, attorneys began to suspect his mind was deteriorating.  "He had trouble reading things out loud, such as plea agreements," lawyer David Mandell says. "He would start and stop and start over."

In August 2006, before announcing a 20-year sentence, Shabaz forgot to offer a convicted drug dealer the chance to ask for mercy, a right spelled out in the Federal Rules of Criminal Procedure.  The judge reversed the process, first announcing the sentence and then offering the man a chance to speak.  The U.S. Court of Appeals for the 7th Circuit called this "the kind of error that undermines the fairness of the judicial process" and sent the case back to a different judge for a do-over.  A story about Shabaz appeared in the Capital Times, a Madison newspaper, under the headline "Confusion in the Court." Easterbrook ... sent intermediaries to persuade Shabaz not to return from a medical leave for shoulder surgery in 2008.  For a while Shabaz resisted, but eventually he acquiesced, a colleague said.  He assumed senior status in January 2009 and no longer hears cases.

January 18, 2011 at 12:23 PM | Permalink


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"More than nine out of 10 district court judges die within a year of retiring fully" - That's why they don't retire.

Posted by: R Barnhart | Jan 18, 2011 1:43:32 PM

This is terrible...They need to boot them out at age 66-68....Get fresh blood in, maybe we could make some headway on below guideline sentences also. Save the country a bunch of money...

What age doe USAtty have to retire, now thats a good area to blog about... These guys try for the max sentence in nearly all cases.. They needn't take themselves so serious, no one else does....

Posted by: Josh | Jan 18, 2011 2:19:12 PM

I wonder if part of this is is because neither party's presidents can get judges approved? E.g., Texas can't get new judges in the Southern District where our immigration caseloads are off the charts. Octogenarian William Wayne Justice served until his death in the Southern District (after spending his main career in TX-Eastern) just because they needed warm bodies to process cases. It wasn't a matter of hubris or stubborness on his part - he was actually needed.

FWIW, the Texas Constitution forces (elected) judges to retire at 75.

Posted by: Gritsforbreakfast | Jan 18, 2011 2:25:43 PM

NOOOOOOO. Our bench in SDWV includes the longest sitting federal judge in the country--85, not senior status. If my client is going to trial or being sentenced I want either him, or the youngest judge on our bench. So what does that tell you? Just that generalities are just that.

Posted by: happydefenseatty | Jan 18, 2011 2:42:20 PM

Well, I'm happy to hear the old geisers are doing ok....68 is too young so is 70, 75 would be the oldest and should be forced to retire.. Therefore
72 is the ideal age...They do have to keep up on new case law and at times get very busy .....Either way 72 or 75, at least there is a retirement date waiting for them, so everyone can plan..Thats my point....80 is way too old. SOmewhere in the mid 70's too many of them aren't at the top of their game....Don't want go before a Judge that is in bad of shape as the Pope always is....

Posted by: Josh | Jan 18, 2011 4:54:00 PM

There were three great mistakes in the Constitution, 1) not ending slavery peacefully; 2) patents; 3) lifetime appointments. Alzheimer would describe a dementia 100 after ratification. So they had no way of knowing about that last mistake. One may ask why human social progress is so slow. It is because the elite cannot change its views after age 40, so one must wait for it to die. In the case of judges, they should be offered the choice of resignation or an arrest for insurrection against the Constitution. No lawyer should be allowed on the bench. Judging seems very difficult, and deserves to have its own professional schools. The emphasis of those schools would be, obey the law, do not make the law.

Posted by: Supremacy Claus | Jan 19, 2011 4:04:38 AM

I believe that one's colleagues are are in the best position to observe when the mind has slipped and are similarly in a more powerful position to suggest the time for retiring from active duty. Unfortunately, as can be seen in the medical, legal and other professions, we are loath (or lack the courage) to confront. While one size/one age retirement might not fit all, our experience demonstrates that we can not rely on the good sense of the individual or the warranted pressure from friends/colleagues.

Posted by: alan chaset | Jan 19, 2011 9:49:42 AM

now this was just funny!

""My memory is not as acute as it was, [but] principles, I know, and my judgment is the same — it may be better," said U.S. District Judge Jack Weinstein, a Brooklyn legend at 89 and one of the nation's most respected legal minds."

Considering the mess this country is in...part of it directly a result of the courts failure to force the govt to obey the constituiton....this is just idiotic.

i agree once they hit 70-75 it's time they were retired. As for the failure to appoint judges. That's easy enough to fix.... let the courts look at the rules covering judicial appointments and remove the politics...REQUIRE an up or down vote PERIOD since i'm sure if the lawyers dig far enough back...the original laws simply give the congress the right of approval....PERIOD which does basicaly mean a YES or NO! not 6 months or more of showboat hearing.

Posted by: rodsmith | Jan 19, 2011 11:24:49 PM

I think you are right when you say this. Hats off man, what a superlative knowledge you have on this subject…hope to see more work of yours.

Posted by: Health Blog | Jan 26, 2011 8:11:00 AM

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