by Don Wheeler
Actually, not. But it sounded catchy - and expresses that my rebuttal to his rebuttal of my argument exceeds the length of a reasonable comment.
For clarification: It may have been easy to miss, but Indiana mostly does elect judges. Only St. Joseph and Lake Counties (the two bluest, interestingly) do not elect Superior court justices. These judges must periodically stand for rentention votes, though.
Most of the tools fc mentioned in use in Washington don't really aid the initial election process, but could be useful for retention votes. The problem is that most of them don't exist here. In any case, not a strong case for intitial election.
Assuming we have a qualified person on the bench, I'm not mad keen on hamstringing their decision making by imposing arbitrary guidelines from folks (be it citizens or legislators) without legal backgrounds and lacking the omniscience needed to forsee all possible scenarios and potential unintended consequences. If we as a society reject my view of this, then we really don't need judges. Facilitators might be good enough.
That overstates it a bit, I realize, but I want judges who can and are allowed to judge. If we get some that can't - vote them out.
In reference to campaign contributors, I'm not as concerned about about biases in criminal cases (with the exception of white collar or coporate crimes), as I am about civil cases. Here's where subtle shadings can really effect outcomes and could be potentially difficult to spot and/or root out. And generally, the last thing we should want to do is increase the influence of money in politics and inject more politics into jurisprudence.
But this is the deal breaker for me. The Washington system (if we were to implement something like it) still doesn't address and can't change the fact that people don't pay attention. There's no reason to think that will change. They have lives which are either comfortable enough that it leads them to think that things are OK, or difficult enough that they don't have time or energy to devote for issues like this. The latter are often of the view that things are bad, but there's nothing they can do about it. And even if they could, studying up on local judge candidates probably wouldn't top their to-do list.
Thus, it will always be a very small group of people without specific qualifications who make the decision. That seems worse - and not very democratic - in my view.
Thursday, February 14, 2008
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4 comments:
this has been a most excellent exchange, and it's the sort of thing that this medium seems to have been made for.
you do most correctly point to the lack of public awareness as the the most important current area of concern, but i wouild again remind you that "campaign creep" may become an even bigger problem.
as to determinate sentencing: the reason voters demanded the change was related to demonstrated disparities in sentencing from judge to judge for the same crimes with similar contextural fact sets surrounding them.
it appeared to many voters that there was a racial component in play, as well as concerns over how defendants were essentially playing "judge roulette" every time they went to court; which has not been an issue since the passage of the initiative.
to put it another way, no matter where you go in this state, committing the same crime should get you the same sentence, irrerspective of how conservative or liberal, or how tough or soft on crime that county or the presiding judge in the case might be.
as to why citizens should be able to tell judges how to sentence: the very first line of washington's constitution tells us all power derives from the people--and we take that to heart.
we have the legal right to tell judges how we want them to punish us for crimes, and that right is here asserted, as it is in a variety of other places around the state's legal map.
why is this logical?
because we feel that the people, together, are at least as wise as those who seek to lead us...and lately, the record of "experts" reminds me of the old joke...
"How to break down the word expert:
Ex = has-been
(S)pert = a leak under pressure."
of all the points i have tried to bring to indiana voters' attention, the issue of determinate sentencing is the one i would encourage you to really reconsider.
voting for judges might not be y'all's cup of tea, and i can understand that because of the lack of public interest, but removing the disparities we addressed above really do matter...and my suspicion is that a quick conversation with an indiana defense attorney will confirm that "judicial roulette" is an indiana problem as well.
First for anyone reading here, I want to be clear that I agree that there is merit in Mr. Consultant's arguments. But I still see problems.
One is if sentencing guidelines are poorly drawn, as they often are, it can lead to a too harsh or too lenient a punishment for the act committed. That's because the circumstances so often differ.
And there's the rub. When you say people will receive the same sentence for the same crime anywhere in the state, I'd say that it may be very difficult to be sure that they are the same crimes.
A man shoots a man with a gun and kills him. We have clear sentences for the various charges. But there are a number of possible charges. So now the prosecutor has inordinate power in the outcome, because he or she chooses the charge to bring. The jury decides guilt or innocence (in most cases), then the judge reaches for the correct rubber stamp to use on the paperwork?!
If judges pass sentences unreasonably, they should be exposed and voted out. The scenario above renders judges as patronage positions, of little import or impact. Or another way to put it, you've narrowed the three branches of government to two. Without an independent judiciary, the doctrine of seperation of powers is not in practice.
And I'll bet the line you cite from the Washington constitution was derived from the US Constitution which alludes to something similar. Of course that Constitution set up something more like an oligarchy than a democracy - only white male land owners could vote.
It all sounds well and good, but it sounds like the evil of two lessers to me.
: > )
Don
you do correctly note prosecutorial disparities as the next frontier of equinamity to be explored...and to take the point further, the manner in which plea bargaining is conducted also contributes to this discussion, and is another area that bears consideration.
you may recall from previous discussion that washington's constitution, as was common with other western state constitutions, offers a far more liberal view of government that the federal eqivalent: we have an enumerated privacy protection, women's sufferage was part of statehood, and as is common throughout this part of the country, we adopted the initiative process...because, under the "all power derives from the people" concept, we are allowed to be our own legislature.
A most refreshing discussion.
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