Monday, November 10, 2008

Censure Insufficient?

The New York Commission on Judicial Discipline imposed a censure of a judge who had accepted a guilty plea and imposed on jail sentence on an intoxicated and incompetent criminal defendant. A dissent finds the sanction insufficient:

In my universe, what’s good for the goose is good for the gander. Respondent’s lawless and reactive abuse of power was at least as profoundly aberrant as Justice Blackburne’s and had more severe consequences.  A young man spent 60 days in jail absent due process in this case.  By contrast, no one suffered, other than from a one day shock of public outrage, from Justice Blackburne’s misconduct.  To me, punishing an individual absent due process is far worse than setting free a suspect absent due process.  Consequences mean something.  Appearances, though extremely important, should not drive our decisions.  Here, I am afraid an incident of extremely serious abuse of power with profound consequences to its victim is being implicitly tolerated by too much leniency.  Respondent should be removed because he is unfit to serve as a judge.  Therefore, I dissent. 

(Mike Frisch)

Judicial Ethics and the Courts | Permalink

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I wonder if the dissent would have agitated for removal if he had actually had the votes to prevail? Somehow, I doubt it.

I found the statement: “punishing an individual absent due process is far worse than setting free a suspect absent due process” very interesting. Obviously, the author’s sentiment is correct but can it ever be a violation of due process to wrongfully free a suspect? I think not. Only people have constitutionally protected due process rights. The denial of a state’s ability to punish one of its citizens can never be a due process violation. At most, it is a procedural violation or a violation of the state’s laws but not a due process violation. This might sound nitpicky but I think it is pretty fundamental.


Posted by: FixedWing | Nov 10, 2008 9:35:22 AM

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