In a new report, a group of judges, lawyers and law students argue that judicial retention laws can be abused to unfairly exclude people accused of serious crimes from the system, including the death penalty.
The article originally appeared in the Times Higher Education Supplement, a newspaper published by the New York Times.
The authors argue that judges should be able to review evidence in court and can decide if a defendant is guilty or innocent before a jury, and that the evidence should be presented in a timely manner to protect victims of crime.
They also say that judges can be held legally liable for their actions.
“It’s very hard to defend yourself against these kinds of allegations,” says Stephen Hargreaves, an associate professor of law at the University of Texas at Austin and a member of the study.
“They can’t be held responsible for the outcome of your case if you are innocent.”
Hargreeves, who is the author of the new report on judicial retention, is also a member and the executive director of the Criminal Justice Reform Project, which is an initiative of the University at Buffalo Law School.
The report is the first in a series on judicial restraint.
“Judges are held to high standards of fairness, justice and fairness in our system,” says Hargrea.
“I think that the idea that a judge could have a conviction overturned because of some sort of mistake is completely unjust.”
The report’s authors include the University Law School’s Robert W. Bork, a professor of constitutional law; John C. Hensley, a law professor at the College of William and Mary; and Robert P. Jealous, a former US district judge and now the dean of the William & Mary School of Law.
They write that judicial restraint should be a matter for judges themselves, not a “political tool” of sorts.
They cite cases from Georgia to the US Virgin Islands to the Netherlands to South Africa.
The US is the only western democracy with a judicial restraint statute.
In 2006, the supreme court ruled in Riggs v Riggs that a conviction could be overturned if a judge had mistakenly concluded that the defendant was guilty.
In 2008, a panel of the US Court of Appeals for the Seventh Circuit in Chicago found in Ringer v Ringer that a federal judge had violated the First Amendment by concluding that a defendant’s conviction could not be overturned because the victim was lying about her rape.
Judges in those cases could have been held criminally liable for making a mistake, and their rulings could have impacted a defendant whose conviction was later overturned.
The courts have also ruled that the criminal justice system is not “committed to the rule of law” and that some forms of judicial restraint violate the First and Fourteenth Amendments.
But judges have been reluctant to apply restraint in some cases, Hargrees says.
In cases involving people accused or convicted of serious offenses, he says, judges have generally relied on discretion, or, as he puts it, “precedent, to determine if they are right.”
“We do think that we can and should have the ability to make the ultimate judgment, but I think that a fair judge would have to make that decision,” he says.
“You have to be really, really careful not to abuse judicial restraint and you have to apply it judiciously.”
The authors say that some judges have used their discretion to impose sentences that could have led to convictions in other cases.
The case of the New Orleans man who was found guilty of killing a woman, Marie Kelleher, is particularly egregious, Hensleys says.
Kellehers was sentenced to life without parole in the death of her estranged boyfriend.
But a federal district judge found that she was not guilty of first-degree murder, which means she was innocent.
Judge Richard C. Morgan, the court’s second-highest court judge, overturned her conviction in 2014, citing a mistrial.
He cited her statements to police and the court to show that she had lied about being raped.
He said that the testimony was “clearly not credible” and was “excessive and unsupported.”
The judges’ actions were particularly egregious because Kellehes, who was in a coma for a year after the crime, told police she did not want to tell the truth about the rape.
But she had told her friends and relatives that she did.
Hargres says that the judge was wrong, that the court should have decided Kellehters innocence and should not have given her a life sentence.
Honsley says the judge’s actions were “a serious mistake,” but they do not constitute judicial restraint because they were based on legal arguments and the judge could decide the case on a case-by-case basis.
“In our system, we should have discretion about what we do,” Hargreys says.
Hares law school class at Cornell is taught by Hensles father, who served in the US Air Force.
Hinsley says that many judges have the power to