Reflections on Judicial
Independence in the Criminal
Justice System
By Hon. Sheila M. Murphy
J
udicial independence goes to
the heart of the democratic
principles that support our liberty. It has been consistently eroded
by attacks from those with political
motivations, occasionally leading to
the direct denigration of judges. This
should never be allowed. It is time to
come back to our core democratic principles—what we have stood for since
the founding of our nation.
In October 2007, returning from
Japan following an International Bar
Association meeting, a journalist from
Singapore told me, “When the United
States of America denies human rights,
as it is doing right now, the whole world
is affected. The death penalty, inhumane
sentences, renditions, holding of prisoners without counsel or trial, justifies
similar abuses throughout the world.”
A Czech lawyer similarly concerned
told a class of attorneys I was teaching
how his grandfather had a radio in the
cellar, where he used to listen to the
forbidden Voice of America broadcasts.
He said his grandfather would have
been imprisoned if he had been caught
listening to the democratic principles
we then were teaching Eastern Europeans. He commented, “Now we need
to beam the voice to you from East
Europe. We need to help the U.S. find
its way home.”
Perhaps nowhere is judicial independence more important and vital to
a constitutional democracy than within
the sphere of the criminal justice system.
However, this core principle that Supreme Court Chief Justice William
Rehnquist referred to in an April 1996
speech as “one of the crown jewels of
our system of government” increasingly
is under attack, often with political
motivations, disingenuous aims, and/or
an utter lack of foresight and common
sense.
The Genesis of the
Problem
The erosion of judicial independence
began with Congress’s creation of the
federal sentencing guidelines and statutory mandatory minimum sentences, in
effect removing judicial discretion and
replacing it with a one-size-fits-all approach to criminal justice. This handcuffed judges and created an inhumane
and unworkable model. As any judge
or lawyer involved in the criminal
justice system knows, not all cases are
the same and neither are all defendants.
Therefore, it would seem to be more
judicious for a judge, possessed of all
the facts, to make a ruling or decision
based on all factors, with his or her
knowledge and discretion, rather than
trying to fit all defendants into the
same box. In addition to the federal
sentencing guidelines, we have also
seen serious challenges to habeas corpus in recent years. It is these guidelines and corresponding punishments
that have created an unsustainable
theater of incarceration, devastation,
injustice, and a blurring of the separation of powers.
One reason for this frightening trend
is that it always has been more politically expedient to be viewed as one
who is tough on crime rather than one
who takes the time and effort to truly
explore multiple options and remedies.
In this regard, while American incarceration rates continue to skyrocket,
Senator Jim Webb of Virginia should
be commended for his stand on this
issue and his dedication to reevaluat-
ing it in the face of political objection.
Webb has realized that in addition to
the great expense that excessive and
prolonged incarceration creates, an
inherent injustice in disproportionate
mandated sentencing also exists. This
is most easily recognizable in the longterm prison sentences required for
minor nonviolent drug offenses.
By sentencing nonviolent drugrelated offenders and the mentally ill
to unjust prison terms, we as a society
are creating a perpetual and growing
underclass. Because, rather than getting the help these persons may need,
we are creating a class that not only
has now been exposed to serious and
violent criminals, and criminal activity, but also will now have a very difficult time finding employers willing
to hire them because of their criminal
records, thus leading to a heightened
potential for recidivism. It is this human
element that is present in each and every
case before a court. As Judge John S.
Martin Jr., formerly a federal district
judge in Manhattan, said: “Every sentence imposed affects a human life
and, in most cases, the lives of several
innocent family members who suffer
as a result of a defendant’s incarceration. For a judge to be deprived of the
ability to consider all of the factors that
go into formulating a just sentence is
completely at odds with the sentencing
philosophy that has been a hallmark of
the American system of justice.” John
S. Martin Jr., Opinion, Let Judges Do
Their Jobs, N.Y. Times, June 24, 2003.
Martin has since retired from the bench
in response to what he views as an unjust criminal justice system, stemming
from the infringement by Congress on
judicial independence.
Published in Human Rights, Volume 36, Number 1, Winter 2009. © 2009 by the American Bar Association. Reproduced with
permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any
means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association
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Currently, the United States is the
world’s largest jailer. According to
the Department of Justice’s Bureau of
Justice Statistics, approximately 2.3
million people populate America’s
prison system. That means that about
one out of every 100 American adults
is in prison. That is a staggering figure,
especially when you consider that
China has approximately 1.5 million
people behind bars, out of a population of over 1.3 billion. Why is this?
Are Americans that much more prone
to criminal activity? Or do we just incarcerate many more people (because
of statutorily mandated prison terms)
than is necessary or just? This does not
even take into account the racial and
social inequities that have been well
documented in this short-sighted attempt by Congress to infringe upon the
judiciary, the implications of which
are far-reaching and have the ability
to make judges feel as if they are, as
Supreme Court Justice David Souter
termed it, “instruments of injustice.”
In 2000, John Steer, vice chair of
the U.S. Sentencing Commission, testified before the House Governmental
Reform Subcommittee on Criminal
Justice, Drug Policy, and Human Resources that in 1999, African Americans made up 30 percent of those subject to five-year mandatory sentences,
43 percent of ten-year mandatory
sentences, 60 percent of twenty-year
mandatory sentences, and 80 percent
of mandatory life sentences. These are
just some of the people incarcerated
under color of law.
Descending the Slippery
Slope
In addition to mandatory minimum
sentencing and sentencing guidelines,
judicial independence has been under
increasing attack for what politicians
and the public may refer to as “judicial
accountability.” The idea is that judges
must be made personally accountable
for their rulings, thus bringing them
under control of the prevailing political
winds. This attempt to erode judicial
independence and intimidate judges
into ruling a particular way has taken
several forms. The Justice Department’s
announcement in 2003 that it would
begin compiling data on judges who
departed from the federal sentencing
guidelines, essentially creating a jurist
blacklist, was one. Others that have
appeared recently can be found on
state ballot initiatives and constitutional amendments, such as judicial
term limits to be applied retroactively,
redistricting, or even the abolition of
judicial immunity from lawsuits. There
has also been a disturbing trend characterized by interest groups pouring
large sums of money into state judicial
elections, in attempts to influence them.
With 95 percent of cases being handled
by state courts rather than by federal
appointed judges, and with at least 39
states electing some of their judges, the
ramifications for justice are serious.
The issues of human rights violations concerning imprisoned foreign
citizens at Guantanamo Bay will hopefully end via an executive order by
President Barack Obama. We must
retain a collective memory that using
the term “enemy combatants” to describe human beings was done without
any judicial hearings or constitutional
grounds. Let us remember that the
executive branch denied human rights
afforded by the Geneva Conventions,
the Uniform Code of Military Justice,
and the U.S. Constitution.
And we must also remember that
American citizens’ constitutional rights
are being denied as well. Tom Cahill, in
his book A Saint on Death Row, relates
the compelling story of Dominique
Green, a young African American who
was executed on October 26, 2004. I
met Green in 2000 at the request of
a peace and justice organization in
Italy called Sant’Egidio. They asked
me to visit him and were incredulous
that he could have no legal redress.
“Wasn’t habeas corpus open to him?”
“Shouldn’t the U.S. Supreme Court
put a stop to the regular executions
in Texas?” I became one of Green’s
lawyers but came to the case too late
to save his life. I was at least able to
keep him alive long enough for him to
read No Future Without Forgiveness
by Archbishop Desmond Tutu, and
for Tutu to visit Green on death row,
where Tutu declared Green to be “a remarkable advertisement for God.”
The victim’s family pleaded for his
life, having doubts about his conviction
from the very beginning. The Houston
police chief even called for a moratorium
on executions, as there existed a likelihood that favorable evidence existed in
the Houston crime lab, which was in
shambles. Texas executed him notwithstanding other issues of constitutional magnitude that were never available for argument because the Texas
courts foreclosed on them. On the
night of Green’s execution, the Fifth
Circuit overturned a stay issued by
Judge Nancy Atlas, and the U.S. Supreme Court upheld the Fifth Circuit.
Cahill relates that “[s]ince 1976
when a more conservative U.S. Supreme Court once again gave the goahead to state executions . . . Texas has
succeeded in executing 406 people,
all poor, most from minorities.” Tom
Cahill, A Saint on Death Row (forthcoming 2009). The independence of
the judiciary is encroached upon in
the most significant way if a judge has
no ability to grant the ancient writ of
habeas corpus because Congress has
abridged the right of review.
Judges Voice Their Dissent
Can judges speak out against injustices?
Both Justice Anthony Kennedy and
Justice David Souter have done so,
among others. Speaking before a
congressional panel on March 13,
1997, Kennedy stated, “I do not think
judges should have their sentencing
discretion controlled by a mandatory
sentence.” Justices Blast Minimum
Sentences, Associated Press, Mar.
14, 1997, www.freechantal.com/
mediadocs/19970514ap.htm. In agreement, Souter stated that many federal
judges “simply believe that ultimately
they become instruments of injustice.”
Id. Certainly in capital cases this is
true. The Supreme Court admitted
in Herrera v. Collins, 506 U.S. 390
(1993), that the execution of the innocent is inevitable. If that is so, have
Published in Human Rights, Volume 36, Number 1, Winter 2009. © 2009 by the American Bar Association. Reproduced with
permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any
means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association
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judges indeed become instruments of
injustice in death penalty cases?
The need for judges of courage will
never end. Justice John Paul Stevens
showed strength when he authored the
Hamdan opinion. 548 U.S. 557 (2006).
In People v. Vilardi, 76 N.Y.2d 67
(1990), New York’s Judge Judith S.
Kaye wrote the majority opinion that
gave defendants greater rights to accuse the prosecution of withholding
evidence than the U.S. Supreme Court
currently provides.
As members of the judiciary who
hear criminal cases, we can either be
remembered for “going along to get
along” or we can put our heads above
the parapet. Judicial independence is
a fundamental right of all; men and
women have fought and died for it. It
is the duty of the judiciary to maintain
its independence.
Edmund Burke is credited with
saying “All that is necessary for evil
to triumph is that good men do nothing.” Let us not remain silent. Let us
remember the ancient law of Ireland,
the Brehon Laws, which enunciated
that the first duty of a judge is to inquire, to speak out—not to remain
silent.
Hon. Sheila M. Murphy is of counsel to Rothschild, Barry & Myers,
LLP, in Chicago. She would like to
acknowledge the research and assistance of fellow attorney Joshua L.
Parkinson in this article’s preparation.
Published in Human Rights, Volume 36, Number 1, Winter 2009. © 2009 by the American Bar Association. Reproduced with
permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any
means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association
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