I'm Not Comfortable With Judges Moralizing
Trigger Warning: Sexual Assault
I’m not comfortable with judges moralizing to defendants. During the hearings for Judge Ketanji Brown Jackson she spent some time talking about things that she told defendants. It felt like a lot but it’s just more than I’m comfortable with, for people who aren’t watching, most of the not-business-as-usual bits of the hearings have been her telling people trying to give your racist ass relatives talking points exactly why they can fuck themselves. Really this isn’t about her, I just started thinking about it during the hearings.
But there’s two reasons why I’m not comfortable with this and I’m going to touch on them quickly:
1) Judges aren’t arbiters of morality. It’s just not their job, and it plays into a very dangerous idea that what is legal and what is moral are equivalent, and if that sounds like something that leads very easy to horrible things being seen as moral because they’re legal then you are on the same tracks I am.
My issue here isn’t Judge Jackson (the issue I have with the Judge Jackson-like way of doing it is point two), my issue here is Judge Murphy. In 2020 Judge Murphy sentenced a man (not saying his name to not detract, it’s in the hyperlink) who had pled guilty to rape and sex abuse to probation. Now if there were reasons to do that, psychiatrists said that he was very likely to be rehabilitated, he was super low risk and we’re still in a COVID pandemic, some mitigating factor than this wouldn’t have made the news.
Instead of those sorts of mitigating factors, however, we were given this quote, “I agonized. I’m not ashamed to say that I actually prayed over what is the appropriate sentence in this case because there was great pain.”
Then he was given probation. For his pain I assume? I’m not sure. This is hard for me, I’m against the prison industrial complex and there’s actually a lot of harmful societal attitudes relating to different types of crime, and I may be writing a book on it (or a long long series of episodes) on it but for now I can say this.
Moralizing is dangerous because we often forget to consider what the basic assumptions of a person’s morality are. Judge Jackson isn’t a toxic moralizing monster that I can see, I’d love to have a philosophical conversation with her about basic moral assumptions just because she’s a Catholic and I’m an atheist and I think we could, but accepting moralizing from judges includes both Judge Jackson and Judge Murphy, and that’s not something to be comfortable with.
2) Weirdly, if you sentence me to jail, I’m not going to be open to listening to you telling me why what I did wrong is wrong. If you don’t think that you’re guilty when you’re convicted, especially if you know you did the thing, then you are part of the very dangerous people. Maybe you should be in prison.
Either way it doesn’t seem like it would be a contentious claim that you’re probably not feeling the best toward the people involved in sending you to prison, regardless of your guilt or feelings thereof.
Very simply, it isn’t helpful. A really basic and easy overview of what people would be feeling and thinking during the time they’re being sentenced would make that clear. “You are sentencing me to prison, I am not open to you talking to me like you’re my parent.” People with kids or who have friends who have kids or who have met a kid know that doesn’t work, and it doesn’t work any better on adult humans (for example, Republican Senators).
We need more ethics in law if we’re going to let judges and lawmakers be arbiters of morality, instead of bureaucrats whose job is to listen to people who are experts in different things. In a functioning system, psychologists and social scientists would get together, research what causes people to commit different sorts of crimes, and when they’re a danger, make recommendations to Congress, Congress would make laws based on that data and then judges would evaluate based on experts and information about what happened during trial. No moralizing, no emotions, no need to keep it performative for the voter.
Which I’m not sure if that means we need to abandon the elected judiciary, which really just moves the burden to the executive branch to justify the actions of its justices (see: Biden and the judge who isn’t even a judge yet), or if we need to make law schools teach more moral and ethical philosophy (you know, that field of study about what is good and why is good and how we do good that people, horrifyingly, seem to not think will ever apply to the real world) instead of just one narrow field of legal education that applies to how to be an ethical lawyer or judge.
Also persecuting Christian dominionists wouldn’t be a bad start.
As a palate cleanser, here’s a video of that time a Florida judge fought a public defender in his office.