I recently got an e-mail from a very bright law school graduate who is studying for the bar this summer. Ryan had a question about judicial bias and he gave me two examples of cases that caused him concern. In both cases, he suggested that the judge or judges made oral or perhaps written statements that showed a preference for state actors. He asked: Do you ever have occasion to employ such language? What salutary purpose might such expressions have?
I asked Ryan if I could reprint his e-mail and use it for this blog post. He was kind enough to give me permission to do so. I have edited the e-mail slightly to remove identifiers and for clarity. Why did I remove identifiers? I did so because I am not comfortable writing about bias and real cases where I don’t personally have more detail.
So, the following reprints Ryan’s email. After that, I try to answer Ryan’s questions while adding a few additional thoughts. With a big “thank you” to Ryan, here is his e-mail:
Dear Judge Kopf:
I’m a recent law school graduate studying for the bar. While that takes up much of my time, I have been an avid read of law blogs for a couple of years now and have been able to keep up with many of them. I only recently found yours. I have already recommended it to several friends and could go on and on about how great it is—a breath of fresh air, a rare perspective, and so on. It is all these things and more. But tonight I write with a question (or a series of related questions). If you have tim to answer, I would be very grateful.
What are your thoughts of judicial expressions of bias in favor of the government? (Bias is a loaded term I know, but I think it is the correct term here. Please read it as a matter-of-fact description rather than an accusation.)
I provide two examples. Each is of a different variety.
1.) During the sentencing of two police officers who perjured themselves while endeavoring to get a conviction. Describing his sentencing decision as among the most difficult a judge could face, [the judge] called the officers’ conduct “regrettably shameful” but said he also took into account the careers and lives they had led.
. . .
Regrettably, I don’t have the transcript, but the inference seems clear. Sentencing these defendants was hard because they were officers of the law. I doubt it was the crime, perjury, that made the sentencing decision do difficult. Coupled with the light sentence, this seems a case where not only was there an expression (admission? recognition?) of bias, but it likely affected the outcome.
2.) In [Inmate[s] v. Prison], after describing in some detail brutal practices within a maximum security provision that resulted in serious injuries to a number of prisoners [the judge said or wrote]:
While the Eighth Amendment will countenance prisons that are restrictive, and even harsh, it does not permit the pattern of needless and officially sanctioned brutality that has invaded operations at [the prison]. Not only have plaintiffs established a pattern of excessive force . . . that has caused sufficient harm to demonstrate the “infliction of pain” on a classwide basis, but they have also shown that this pattern is attributable, not to inadvertence or mistake, but to defendants’ deliberate indifference and knowing willingness that harm occur. It is a conclusion we do not reach lightly. On the contrary, it is with considerable reluctance and regret that we find violations of this nature within an institution of our state. We are persuaded, however, that the testimonial and documentary evidence permit no other result. [Emphasis added by Ryan]
Here the judge expressly states that the defendant’s status as “an institution of [his] state” affected his judgment.
. . . . I do not understand the intended function of either of these expressions of bias. (I don’t like the term I’ve coined; I’m sticking with it for consistency’s sake.) I would guess that such statements undermine the public’s confidence in the judiciary as an independent branch.
Do you ever have occasion to employ such language? What salutary purpose might such expressions have?
Thanks for taking the time to read this e-mail and again, in advance, if you are able to respond.
Initially, I should stress that I cannot discuss in this post all of the implications raised by Ryan’s questions because of space and time limitations. Moreover, I am writing very plainly for the sake of clarity, and I will undoubtedly over-simplify things.
So, what follows are my responses to Ryan’s thoughtful questions:
*From a legal rule perspective Ryan, your conception of bias, at least in the federal courts, is broader than the conception of bias that exists in federal law. What a judge writes or says about a case is almost never enough to show bias. This is because the Supreme Court has recognized that judges are human beings with life experiences and foibles that all human beings must labor under. See, e.g., Liteky v. United States, 510 U.S. 540, 555 (1994) (“Not establishing bias or partiality, however, are expressions . . . that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display.”) Thus, the terms “bias” and “prejudice” as used in the federal statutes connote a favorable or unfavorable disposition or opinion that is somehow wrongful or inappropriate (1) either because it is undeserved or (2) because it rests upon knowledge that the subject ought not to possess or (3) because it is excessive in degree. In a similar vein, the remarks must display a deep-seated favoritism or antagonism that would make fair judgment impossible. For an example of an alleged statement that would show bias, consider the statement that was alleged to have been made by the District Judge in Berger v. United States, 255 U.S. 22 (1921), a World War I espionage case against German-American defendants. The judge was alleged to have said or written: “One must have a very judicial mind, indeed, not [to be] prejudiced against the German Americans” because their “hearts are reeking with disloyalty.” Id., at 28 (internal quotation marks omitted). So, legally speaking, judicial “bias” in the federal courts, when based upon what the judge says or writes, has got to be so plain and one-sided that it is obvious that a “fair judgment is impossible.”
*Ryan, I used to have a “sticky note” on the bench that said simply “shut up.” That reminded me that I should be very careful what I said from the bench. I used a “sticky note” so I could pull it off the bench and ignore my own admonition. I will provide you with an example of a remark I made that got a lot of press and pissed off a bunch of doctors and med student. I had several related tax cases where doctors bought into bogus tax shelters being recommended by their CPA. They were prosecuted criminally. While I sent the CPA to prison, I gave all the doctors probationary sentences. But, in so doing I criticized the “entitlement mentality” of physicians and I suggested that medical schools should teach young doctors to check their big egos at the door when they leave the medical suite and file their tax returns. Would I have been better off to shut up? I don’t know. Here is my rough rationale: Understand that the government was seeking prison terms for these doctors, and I supposed that members of the public would view my sentences as far too lenient, and as a result I wanted to be clear that I found the activities of the doctors to be reprehensible. What especially concerned me was that young medical students might think they were entitled to a “pass” if they screwed with their IRS. Because general deterrence is a proper function of federal criminal sentencing, I thought the part of my remarks that caught the attention of the press was appropriate when measured against everything else I did and said at sentencing. For example, I made one doctor practice in a hospital that cared for poor people in Saipan where he would receive a salary roughly one-fourth of that he would otherwise make in the mainland US. So, the “piggish” doctor was going to “do time” serving others. Did my remarks show that I was biased for or against doctors? That’s for you to decide.
*Yes, there are times when I use statements such as the ones you allude to either (1) because I am consciously and honestly intending to explain myself or (2) because I am a human being and the case has presented me with facts that, like chiggers, make me break out into verbal hives.
* Ryan, regarding the cop/perjury case, realize that cops who are required to serve prison time do “much harder” time than the normal offender. If you believe that prison should be equally unpleasant for all, but not especially unpleasant for some, then this bit of legal realism is proper for a judge to consider when sentencing a cop. That is why the Supreme Court has recognized in the federal system that a district court acted within its discretion in considering police officers’ high susceptibility to abuse in prison when imposing a sentence less harsh than called for under the Guidelines. Koon v. United States, 518 U.S. 81 (1996) (this is the Rodney King case that caused huge turmoil in California).
*As for the judge’s remarks about “being one of the most difficult,” I really don’t see bias of any type in that remark even if you define bias very broadly. In the real world, many judges (including me) view police officers, prosecutors, criminal defense lawyers, corrections officers, probation officers and the like as a part of the same “team.” That is, these actors are all supposed to be committed to the same goal of administering the law within the rules. When they disappoint and subvert our system, it is truly very painful for a judge who venerates the law. So, considering the statement that sentencing cops was “among the most difficult a judge could face,” I took that as a lament for the harm done to the system by people the judge previously respected. If I were a defense lawyer, I might well conclude upon hearing the judge’s words that my cop-defendant best be retrieving his toothbrush in preparation for the cell doors slamming shut for a long, long time. That the decision was more lenient, does not necessarily suggest bias to me. (I am not saying your perception was unreasonable, I am only suggesting that the judge’s statement did not clearly suggest to me that the judge was a cop groupie.)
*As for the prison case, I don’t see evident bias there either. While reasonable minds can differ, my experience suggests, and I frequently imply in my opinions, that most prison warders are honorable and professional people who do not consciously allow the abuse of inmates. (Incidentally, the substantive law has a similar presumption.) I acknowledge that this perception may be entirely wrong. Indeed, the judge in your example seems to have recognized that his or her similar perception was not borne out by the facts of the case. As long as the judge can set aside his or her experiences in the affairs of life, and judge the case on the facts presented to the judge–rather than solely on the judge’s world view–I see no bias of the kind we ought to be worried about.
*Finally, where it is appropriate, I want judges to be transparent when they speak or write. Ryan, I ask that you read an earlier post entitled “Orwell lives” regarding the use of language to obscure what judges are really doing. In short, it is a frightening task for judges to express honestly their reasons for making one decision rather than another because their words can so easily be misunderstood or misconstrued. Nonetheless, I would rather have judges be more frank (when they can be) as opposed to expressing their decisions in language that makes their reasoning obscure but “safe” from claims of bias or other criticisms.
So, Ryan, your questions are good ones. Please take my views with a grain of salt. Perhaps you are right, and the judges in your cases showed bias. For me, I come to the opposite conclusion.
All the best.