•  
  •  
 

Document Type

Article

Abstract

Judicial legitimacy not only depends on judges maintaining the high ethical standards imposed on them but also on the public believing judges will be held accountable when they break the rules. However, judges are often viewed as “getting away with it.” This Article focuses on how to improve this problematic perception of state judicial discipline systems (JDSs). Part of the answer is more exposure, including a social media presence, for judicial discipline commissions (JDCs), the bodies in each state responsible for resolving misconduct complaints and recommending or imposing sanctions, because the public and media have a similar flawed understanding of the high number of dismissals to preserve the necessary distinction between misconduct and appeals and seriousness of all public sanctions. But JDSs also have shortcomings.

First, the foundational purposes identified for sanctions are incomplete due to courts’ repeated statements that punishment has no role to play. Such assertions are inaccurate and detrimental to the purposes that are acknowledged: deterring misconduct, recognizing the seriousness of the misconduct and communicating that to the public, and, especially, encouraging public confidence in JDSs. Moreover, while affirmative statements that sanctions are not meant to punish cannot be blamed for every sanction the public finds too lenient, they do encourage lighter sanctions, which is connected to the next JDS problem.

Second, disproportionate sanctions thwart the aims of JDSs and further the harmful slap-on-the-wrist narrative, frustrating the public. While judges and JDSs characterize public censure as serious, the public and media view anything short of suspension as too light. Although this does not mean censures should be abandoned, sanctioning bodies should impose suspensions for significant misconduct and hold to the standard that has already been articulated―extreme misconduct equals removal. This is not always an easy line to draw, but there are plenty of recent examples where it should have been, including: (1) a judge ignoring the defendants’ request for counsel and then prosecuting the case himself and (2) a judge admitting criminal responsibility that necessitated prison time— but the first judge only received a censure and the second a suspension.

Third, lengthy suspensions as sanctions should be abandoned because, without any additional benefit over a short suspension, they burden the court system, adding delay and creating additional work for other judges with dockets that are already too full and provide an out to JDCs and courts when removal would be more proportionate to the misconduct. Thus, suspensions should be limited to thirty days.

Fourth, suspensions should result in lost time toward retirement vesting, and removal for any reason should equal automatic retirement benefit forfeiture.

Fifth, JDCs and courts must have continuing jurisdiction over complaints made prior to judges leaving office with every sanction available to them, including removal for purposes of retirement benefit forfeiture. In sum, increasing judicial accountability by employing the steps this Article offers will not only increase JDS efficacy but also judicial legitimacy.

Download

Share

COinS