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October 25, 2012

Should judges be angry at sentencing?

The question in the title of this post is prompted by this new article by Professor Terry Maroney, titled "Angry Judges."   The interesting article covers a lot more that criminal law and procedure issues, but here is one intriguing passage discussing judicial anger and sentencing:

Judicial anger at criminal sentencing often can be justified as well, and for a similar set of reasons. By the time of sentencing, blameworthy conduct already has been shown. Assuming, as the judge must, the accuracy of that finding, the judge is entitled to respond emotionally to any harm the defendant has caused.  Expressing anger vividly demonstrates to victims and their survivors that they are within the judge’s zone of care. It communicates, in a way that other demonstrations could not, that they are members of the valued community.  It also demonstrates judicial respect for the defendant. As one feels anger only where a human agent has chosen to inflict an unwarranted harm, showing anger reveals the judge’s assessment that the defendant is a fellow human possessed of moral agency.  By using his authoritative position to send moral messages to the wrongdoer, the judge ideally frees others in society from feeling a need to do so themselves, including through vigilante action.

In contrast, judicial anger might be used not to send deserved moral messages but to belittle, humiliate, or dehumanize.  This is a particular danger in criminal sentencing, but it is by no means limited to that setting.  For example, rather than force the defendant to hear both an account of the harm he has caused and the judge’s moral condemnation of those acts, she might call him a “lowlife” or “scumbag.”  Insults, gratuitous displays of power, extreme sarcasm, mocking, and demeaning language all reflect that the judge is using anger to assert her dominance.  Assertions of power are, to be sure, sometimes appropriate.  Anger at lawyers, witnesses, and parties may be helpful in reminding those persons that the judge is in charge of both the courtroom environment and the processes of litigation.  Belittling actions appear meaningfully different.  Acting so as to humiliate or belittle strongly suggests that anger is no longer operating in isolation: instead, it has become corrupted with contempt.  Contempt, like anger, reflects a judgment that a fellow human has acted badly.  Unlike anger, it goes on to value that fellow human as “vile, base, and worthless.”  It explicitly positions its target as an inferior, not just hierarchically but as a human being, and motivates public assertions of that inferior status.  When judicial anger becomes intertwined with contempt, it loses its claim to justification, for it has internalized a fundamentally bad judicial value: superiority.  While judges have a legitimate claim to authority, they have no such claim to superiority.

October 25, 2012 at 09:45 AM | Permalink

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Comments

A judge being angry at sentencing demeans the bench. Judges are not there to serve as the fist of righteous retribution, they are there to ensure due process and the rule of law. You don't need to be angry to sentence to death or LWOP, and you don't need to like a defendant to sentence to probation. It is common knowledge that emotion and logic are to a great extent mutually exclusive. Emotion works, in effect, purely to undermine good judgment. Why should a cute, young, female defendant with big puppy-dog eyes and a sweet voice get less punishment than a man whose unlucky genes have etched a permanent scowl on his face? To the extent that there are aggravating facts, those facts can be rationally applied to cases for sentencing without anger. Judges are not there to serve victims, they exist to serve the Constitution and the people as a whole. If victims were all that mattered, we would let victims do sentencing, not judges.

"Expressing anger vividly demonstrates to victims and their survivors that they are within the judge’s zone of care. It communicates, in a way that other demonstrations could not, that they are members of the valued community."

I'd bet a lynch mob does a much better job at showing victims they are members of the valued community.

Posted by: lawguy | Oct 25, 2012 7:40:49 PM

Oh, and I love how everyone who wants to hold up victims as the basis for harsh sentencing, throws them under the bus when faced with victims who either (1) actively oppose the prosecution, and/or (2) seek leniency for the defendant. When this happens, suddenly the victim doesn't matter anymore and it is all about "the people" and "protecting the public".

Posted by: lawguy | Oct 25, 2012 7:44:04 PM

lawguy:

Victims, VICTIMS? We don't need no stinking victims!

Posted by: albeed | Oct 25, 2012 9:55:35 PM

The expression of anger by a judge at sentencing is a bad idea.

1) Anger is an expression of frustration and weakness.

2) It likely violates a judicial ethics rule. From Canon 3 of the federal judiciary: 3) A judge should be patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity. A judge should require similar conduct of those subject to the judge’s control, including lawyers to the extent consistent with their role in the adversary process.

3) Criminals tend to be under-reactive, to crave sensation, and to enjoy the suffering and frustration of others. Anger may be rewarding to the sentenced defendant, rather than scary.

4) Anger is an emotion associated with retribution as a purpose of the criminal law. This is an improper purpose stemming from the Bible, reflecting the tribal culture of its Iraqi and Palestinian writers of 3000 years ago. Not a group to serve as models, unless one wants their animalistic lifestyles, and their poverty. The cooler the judge, the better the sole mature purpose of the criminal law is served, incapacitation. As the criminal was calm, enjoying his victimization of the crime victim, then should he experience the same as the judge dispatches him to the next world.

5) Anger is empty hot air compared to physical measures taken against the sentenced defendant. Once convicted, the defendant should be subjected to enhanced interrogation methods for 8 hours a day to solve his other hundreds of crimes. This opportunity should be made available to all police departments of the districts where the defendant has passed through. The defendant should be engaged in this productive activity rather than enforced leisure.

Posted by: Supremacy Claus | Oct 26, 2012 1:49:19 AM

Anger is probably the wrong word to use. It is acceptable for a judge to be stern and express the outrage which the community and legal system feel/should feel about acts which have led the defendant to face judgment, but that outrage should be expressed calmly and rationally.

Posted by: tmm | Oct 26, 2012 2:33:14 PM

tmm --

Nailed it.

Posted by: Bill Otis | Oct 26, 2012 4:21:28 PM

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