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September 23, 2021

"How often does a judge end up sentencing someone for breaking a law the judge personally disagrees with?"

The question in the title of this post is the "September Question of the Month" from the National Judicial College emailed as "an informal, non-scientific one-question survey to its more than 12,000 judicial alumni in the United States and abroad."  Here are the results, as reported here, for this "informal, non-scientific one-question survey":

Of the 350 NJC alumni who responded, nearly 95 percent said it had happened to them either a few times (55 percent), more than a few times (27 percent) or often (12 percent). Only 5 percent of the judges said they had never had to make a ruling that conflicted with their personal beliefs.

Among the roughly 100 judges who left comments, a common sentiment was that a judge’s job is to apply the law to the situation at hand; judges can’t write the statutes.  “It does not matter how I feel concerning the matter before me,” wrote one anonymous judge.  “My job is to interpret the law as put in place by the legislature, whether I agree with it or not.”  Circuit Judge Michael E. Raiden of Hardee County (Florida), was even more definite: “My subjective personal beliefs … are simply irrelevant.”

Some judges who commented provided examples of categories of laws that conflicted with their personal beliefs. These included:

  • Marijuana and other drug usage/possession
  • Possession of firearms or other weapons
  • Mandatory minimum sentencing

One anonymous judge said marijuana prohibitions “were founded on a lack of scientific analysis and led to more Fourth Amendment confusion than any other law in my lifetime.”

Another judge seemed to disapprove of a law against possession of a firearm.  The judge said the law carried a mandatory minimum five-year prison sentence without the possibility of parole, probation or suspension of sentence, regardless of whether the weapon was property registered.

Connecticut Superior Court Judge Eddie Rodriguez Jr. said mandatory minimum sentences are “an affront to judicial independence and … a violation of the separation of powers….”

Both the question as framed and this discussion of responses leaves me a bit unsure if the goal was to assess whether judges had to enter convictions for what they thought should not be crimes or merely had to impose sentences they thought inappropriate.  I sense both sorts of concerns were part of the answers, but this ambiguity is perhaps a useful reminder of how challenging it can be to make precise inquiries about judicial sentiments.

September 23, 2021 at 03:54 PM | Permalink


For a study of Judges faced with applying a law they felt was wrong, or that was unpopular, see Robert Cover's Justice Accused: Anti Slavery and the Judicial Process about Judges applying the fugitive slave laws prior to the Civil war or "Judging the Judges" (2002) a study of the District of Minnesota Federal Bench and enforcement of Draft law as the war in Vietnam became more and more unpopular.

Posted by: scott tilsen | Sep 24, 2021 9:14:20 AM

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