"Resolving Judicial Dilemmas"

The title of this post is the title of this new paper authored by Alex Sarch and Daniel Wodak recently posted to SSRN.  Here is its abstract:

The legal reasons that bind a judge and the moral reasons that bind all persons can sometimes pull in different directions. There is perhaps no starker example of such judicial dilemmas than in criminal sentencing.  Particularly where mandatory minimum sentences are triggered, a judge can be forced to impose sentences that even the judge regards as “immensely cruel, if not barbaric.” Beyond those directly harmed by overly harsh laws, some courts have recognized that “judges who, forced to participate in such inhumane acts, suffer a loss of dignity and humanity as well.”

When faced with such a judicial dilemma — a powerful tension between the judge’s legal and moral reasons—the primary question is what a judge can do to resolve it. We argue that the two standard responses — sacrificing morality to respect the law (“legalism”), or sacrificing the law to respect morality (“moralism”) — are unsatisfying. Instead, this Article defends an underexplored third response: rather than abandoning one ideal to maximally promote the other, we argue that judges should seek to at least minimally satisfy the demands of both.  Judges should, in other words, look for and employ what we dub Satisficing Options.  These are actions that enjoy sufficient support from both the legal reasons and the moral reasons, and thus are both legally and morally permissible — even if the acts in question would not strictly count as optimal by the lights of the law or morality.

This common sensical response to the problem is not only underappreciated in the literature, but also has great practical import.  Focusing on the sentencing context, this Article demonstrates that judicial dilemmas can be systematically resolved, mitigated or avoided through a range of concrete strategies that on their own or in conjunction can constitute Satisficing Options: these strategies include seeking out legally permitted but morally preferable interpretations of the law, expressing condemnation of unjust laws in dicta, and seeking assistance or cooperation from other actors to help defendants facing substantively unjust mandatory sentences.  While these strategies can at times also go too far, we argue that in certain contexts they can be sufficiently defensible on both legal and moral grounds to be a justifiable response to judicial dilemmas.  This Article thus provides both a novel theoretical framework for understanding the justification of judicial responses to unjust laws, as well as a practical a menu of options which judges can use to guide their responses to the judicial dilemmas that they are increasingly likely to encounter within our criminal justice system.