Too Much Discretion
In what country can people routinely be arrested (and sometimes imprisoned for a significant amount of time) based on the whim of a police officer or a judge? Sounds like something that would happen in a totalitarian state, but it’s the way things work in the United States.
In the frenzy of news coverage of the recent incident involving the arrest of Professor Henry Louis Gates in his home, only a small amount of attention was devoted to the issue of police discretion. Gates was arrested on a charge of disorderly conduct, which was later dropped. Charges such as disorderly conduct basically give the police an enormously broad range of discretion to arrest anyone for nearly any reason.
President Obama said that the police “acted stupidly,” and he was roundly castigated for making this statement. He misspoke, not because he criticized the police but because the problem wasn’t that the police acted stupidly — it was that they had a tremendous amount of discretion to arrest.
Should the police have so much power to arrest a person? With vague charges such as disorderly conduct, the police can essentially arrest a person who says things they don’t like or threatens to complain about them.
And consider this story, from the Chicago Tribune:
Clifton Williams arrived at the Will County Courthouse in Joliet and sat in the fourth-floor courtroom where his cousin was pleading guilty to a felony drug charge.
As Circuit Judge Daniel Rozak handed down the cousin’s sentence — 2 years’ probation — Williams, 33, stretched and let out a very ill-timed yawn.
Williams’ sentence? Six months in jail — the maximum penalty for criminal contempt without a jury trial. The Richton Park man was locked up July 23 and will serve at least 21 days. . . .
A Tribune review of a decade’s worth of contempt-of-court charges reveals that Rozak jails people — typically spectators whose cell phones go off or who scream or shout profanity during sentencing — at a far higher rate than any other judge in the county. There are now 30 judges in the 12th Judicial Circuit, but since 1999, Rozak has brought more than a third of all the contempt charges, records show.
Apparently, the yawn was very loud and disruptive, but jail? Six months? Why not simply kick him out of the courtroom?
Judges have tremendous discretion to issue contempt charges. It is way too much, and there are few limits to reign judges in. The article continues:
Judges have broad discretion under the law, which defines contempt as acts that embarrass, hinder or obstruct the court in its administration of justice or lessen its authority or dignity. As long as the sentence is not longer than 6 months, there is no review of the case — unless the offender appeals to the judge or a higher court. . . .
In the two-story brick home where Williams had been living with his aunt Cheryl Mayfield and caring for his 79-year-old grandmother, family members said they were in shock over the sentence but were unable to afford an attorney to appeal.
The public has a First Amendment right to attend courtroom proceedings, and judges like Rozak who issue such excessive contempt charges might have a deterrent effect on people attending his courtroom.
While police must have the ability to arrest a person who threatens to become violent or dangerous, and while judges must be able to govern their courtrooms, they have far too much discretionary power. These two recent incidents demonstrate the need to reign in excessive discretion.