Too Much Discretion
posted by Daniel Solove
In what country can people routinely be arrested (and sometimes imprisoned for a significant amount of time) based on the whim of a police officer or a judge? Sounds like something that would happen in a totalitarian state, but it’s the way things work in the United States.
In the frenzy of news coverage of the recent incident involving the arrest of Professor Henry Louis Gates in his home, only a small amount of attention was devoted to the issue of police discretion. Gates was arrested on a charge of disorderly conduct, which was later dropped. Charges such as disorderly conduct basically give the police an enormously broad range of discretion to arrest anyone for nearly any reason.
President Obama said that the police “acted stupidly,” and he was roundly castigated for making this statement. He misspoke, not because he criticized the police but because the problem wasn’t that the police acted stupidly — it was that they had a tremendous amount of discretion to arrest.
Should the police have so much power to arrest a person? With vague charges such as disorderly conduct, the police can essentially arrest a person who says things they don’t like or threatens to complain about them.
And consider this story, from the Chicago Tribune:
Clifton Williams arrived at the Will County Courthouse in Joliet and sat in the fourth-floor courtroom where his cousin was pleading guilty to a felony drug charge.
As Circuit Judge Daniel Rozak handed down the cousin’s sentence — 2 years’ probation — Williams, 33, stretched and let out a very ill-timed yawn.
Williams’ sentence? Six months in jail — the maximum penalty for criminal contempt without a jury trial. The Richton Park man was locked up July 23 and will serve at least 21 days. . . .
A Tribune review of a decade’s worth of contempt-of-court charges reveals that Rozak jails people — typically spectators whose cell phones go off or who scream or shout profanity during sentencing — at a far higher rate than any other judge in the county. There are now 30 judges in the 12th Judicial Circuit, but since 1999, Rozak has brought more than a third of all the contempt charges, records show.
Apparently, the yawn was very loud and disruptive, but jail? Six months? Why not simply kick him out of the courtroom?
Judges have tremendous discretion to issue contempt charges. It is way too much, and there are few limits to reign judges in. The article continues:
Judges have broad discretion under the law, which defines contempt as acts that embarrass, hinder or obstruct the court in its administration of justice or lessen its authority or dignity. As long as the sentence is not longer than 6 months, there is no review of the case — unless the offender appeals to the judge or a higher court. . . .
In the two-story brick home where Williams had been living with his aunt Cheryl Mayfield and caring for his 79-year-old grandmother, family members said they were in shock over the sentence but were unable to afford an attorney to appeal.
The public has a First Amendment right to attend courtroom proceedings, and judges like Rozak who issue such excessive contempt charges might have a deterrent effect on people attending his courtroom.
While police must have the ability to arrest a person who threatens to become violent or dangerous, and while judges must be able to govern their courtrooms, they have far too much discretionary power. These two recent incidents demonstrate the need to reign in excessive discretion.
August 10, 2009 at 10:09 pm
Posted in: Constitutional Law, Criminal Law, Criminal Procedure
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Responses (6)
A.W. - August 11, 2009 at 5:55 am
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.
Robert - August 11, 2009 at 8:20 am
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.
Damond - August 11, 2009 at 9:34 am
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.
Vladimir - August 11, 2009 at 10:35 am
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.
ohwilleke - August 11, 2009 at 4:27 pm
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.
“Judge sentences man to 6 months in jail for yawning” - August 14, 2009 at 6:25 am
[...] A spokesman for the prosecutor’s office said the yawn, by a cousin of a drug defendant at his plea, was “a loud and boisterous attempt to disrupt the proceedings”. The Chicago Tribune says the judge in question, Circuit Judge Daniel Rozak of Will County, resorts to contempt findings unusually often. The judge later released Clifton Williams after he had served 21 days. [Chicago Tribune, ABA Journal, Solove/Concurring Opinions] [...]
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