The Failure to Hold Judges to Account

In the November 2018 issue of Prison Legal News, an article on how the #MeToo movement has impacted federal judges, the sobering information that, for six of the past 11 years, not a single federal judge has been reprimanded came to light. Worse, the scarcity of even an investigation is breathtaking. In 2015, only four out of the 1,214 complaints made were given a serious inquiry. Likewise, in 2016, it was only four out of 1,303.

No doubt, a great many of the complaints are frivolous or overblown, but it simply defies common sense to state that less than a third of a percent..that is ONE THIRD OF ONE PERCENT…of complaints are even worth looking into, let alone taking action on. The law of averages makes these numbers hard to believe. Without speaking to the merits of any given case, any investigation rate under 10% should immediately raise our suspicions.

In general, self policing is completely ineffectual. These numbers show that the judiciary is no exception. Complaints against judges are not taken seriously and are summarily disposed of. Even in the few, isolated occasions where investigations actually occur and wrongdoing is found, the “punishments” are proforma. Tactless reprimands are given, “don’t do that again.” These are hardly real consequences.

As the Supreme Court as noted, in Olmstead, when the Government, or-here-its agents, are seen as being above and beyond the law, this breeds contempt for the law. This is corrosive to civil society as the Courts must be seen as doing justice. Perception is just as important, if not more so, than the reality . Letting it appear that judges are exempt from punishment for serious misconduct has no benefits; it can only diminish the already low respect for the judiciary.

More important than public perception is the actual effects this has on the system itself. Just like a law without a punishment is merely a suggestion, so too, judicial rules that are not enforced are naught but words. Judges who fail to follow, or deliberately violate, the guidelines in place to ensure fair proceedings, but do not receive correction, are being taught that those guidelines do not matter. This ensures less care in the future because there are no consequences for breaking the rules, not even the modest rebuke of reversal and the extra work of correction. The quality of justice necessary suffers as a result.

Without some method of genuine review of misconduct, the system cannot work. Much as society cannot function if people are not caught and punished for violating the rights of others, independent and genuine review of complaints is essential to proper operation of the justice system. Right now, these numbers not only tell us we don’t have that…we’re not even close.

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