Too Much Discretion

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6 Responses

  1. A.W. says:

    In Gates’ case, the guy said, “stop acting like an idiot or i will arrest you” (paraphrase). so its not like he wasn’t warned. i have gone back and forth, but i am convinced today that Gates was in the wrong.

    As for yawning in court, doing so in response to a sentence is probably the best example of contempt. and courts do need to be able to maintain the appropriate dimeanor, so little sympathy.

    there of course can be troubling situations where broad discretion is granted. Statutory rape is a good example, because often prosecutors use such laws to convict when they can’t meet the burden for forcible rape, but they believe firmly that this occurred. but what could be more selective in terms of prosecution? And there are regular accusations that the selection is race-based.

    But the targets you picked are poor examples. Gates was warned to cut it out and kept going. i frankly suspect that Gates wanted to be arrested. and contempt of court is a necessary tool to maintain order.

  2. Robert says:

    I would have to agree completely with A.W. above, although I feel that the 21 days is a bit egregious. But to say it was an “involuntary reaction” sounds a bit silly. I know as well as the next person from my younger, more immature days that when you say something like that, in many cases, you’re covering for something more serious.

  3. Damond says:

    Judges and cops have too much power. Black people in this country did not start going to jail until slavery ended. Now there is one million black people in jail.

  4. Vladimir says:

    Dan, your story shocks my conscience. I agree with you that there is a first amendment issue here, but might there also be a due process problem (see, e.g., my shocked conscience) and an 8th amendment excessive/disproportionate punishment problem.

    But you are absolutely right that police discretion (and judicial contempt discretion) are problem areas in American law and must go. They should be the next frontier of civil rights litigation, so that they go the way of vagrancy in the 60s and 70s.

  5. ohwilleke says:

    Stupidity is a pretty good name for an unwise exercise of discretion, and the decision of the prosecutor to drop charges in a politically charged case that attracted the President’s attention and no doubt had little public support in Cambridge, can likewise be described as wise.

    Also it is worth noting that power comes on a continuum. In Japan, police officers can directly impose short incarcation punishments for minor offenses without judicial review; so can officers with respect to their inferiors in the military justice system.

    The direct contempt power that the judge in the Chicago case has a record of using fifteen times more frequently than judicial peers, likewise has its roots in the notion of a judge as an agent of an absolute sovereign – it is a rare exception to the general rule of due process designed to maintain absolute and obsequious order at the heart of the judicial process. Direct contempt order are subject to appellate review, but it is often impractical to do so (in the case in question, the sentence would work out to three weeks in practice). The fear that has kept the direct contempt power in force is that systemic disruption could undermine the authority of the court and entangle it in collateral litigation. But the rarity with which the vast majority of judges use the power, and comparative experience, bely its necessity.

    Ironically, abuse of the direct contempt power is more of a worry in our modern democracy, where it is so very hard to remove a judge, than it was in a monarchy, where judges were more easily removed for inappropriate use of discretionary powers.

    The availability of charges like “disorderly conduct” for law enforcement officers also suggest that the risk of systemic disobedience in court is overblown.

    In contrast, indirect contempt citations, whether punitive or civil in nature (for violations of court orders outside the presence of the court) involve full due process with notice and hearing in an adversary setting, and appellate review is often a practical alternative.

    The French revolution set the example of an alternative model, deliberately departing from the sovereign model, in which judges have no direct or indirect contempt powers.