Judges Have a Moral Responsibility to Step Down Over Excessive Mandatory Sentencing

In recent years, various parts of the judiciary, government and public have begun questioning the ethics of harsh mandatory sentencing. In 2010, President Obama signed the Fair Sentencing Act which reduced the crack – powder cocaine sentencing disparity and eliminated mandatory minimums for possession. Last year, California voters overwhelmingly approved an amendment to the state’s three-strikes law that would require the third offense to be violent or serious. The federal judiciary has also launched some internal reforms, with a number of federal judges beginning to refer non-violent drug offenders to drug courts. However, sentencing in many states remains incredibly harsh and the wheels of justice turn slowly. Judges forced by law to lock people in cages for years or even decades have a moral responsibility to campaign against these laws and resign rather than enforce them.

US judges sentence more citizens to prison per capita than any other nation in the world, including public execution aficionado Saudi Arabia, totalitarian China and beacon-of-freedom Belarus. Horror stories abound of people receiving 45 years for purse snatching, 70 years for stealing a tuna fish sandwich and 25 years to life for theft of a VCR. The black-robed officials who stand in judgment of their fellow man and sentence him to spend significant chunks of his life in the Thunderdome-esque nightmare of U.S. prisons are morally culpable for their actions regardless of whether they have legal discretion or not.

Judges cannot claim duty, ignorance or necessity drives these decisions. The “I was following orders” or “I was obeying the law” excuse has been thoroughly debunked by Hannah Arendt, Robert Jackson, Martin Luther King Jr. and many others. Judges are intelligent and discerning, so they should be expected to recognize the gross injustice of depriving an individual of liberty, shattering a family and disrupting a community over petty offenses. They will not face intense financial or personal hardship for doing the right thing. They’re not some impoverished Palestinian day-laborer choosing to construct the fence that will seal off his village rather than go hungry.  They’re not a front-line U.S. soldier facing court-martial for disobeying her superior’s questionable commands. The worst a judge would face is a transfer to a less prestigious courtroom or an early retirement spent sipping pink umbrella drinks in Palm Springs.

Some judges acknowledge the murky morality of enforcing mandatory sentences. Stefan R. Underhill, a federal judge in Connecticut, said recently that “when you impose a sentence that you believe is unjust, it is a very difficult thing to do. It feels wrong.” That’s because it is wrong.  Howard Broadman, a conservative ex-judge from Tulare County, California gave young father Shane Taylor a third strike 25 years-to-life sentence for possession of five grams of methamphetamine. Broadman emotionally told a New York Times reporter that Taylor’s “first two offenses were not significant, and I made a mistake, and I’m sorry. I’m really sorry.” Sorry’s not going to give Shane Taylor 15 years of his life back, not going to give his daughter a father and not going to give his wife Shelly Hayes her husband. Judges like Broadman have acted in a deeply amoral way and deserve partial blame for what happens to the Shane Taylors of the world.

What is a morally righteous, powdered-up peoples’ champion to do then? First, they should either refuse to issue excessive mandatory sentences by recusing themselves from relevant cases, issue morally acceptable sentences despite the law or resign if necessary. Second, they should use their credibility as a judge to publicly advocate for sentencing reform, the repeal of blanket mandatory sentencing and retraction of three-strikes laws. Finally, they should advocate for these positions with their fellow judges and through legal/judicial organizations. There’s plenty of blame to go around concerning America’s harsh penal system, but judges who follow unjust laws are as guilty as anyone.