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Not to defend the judge in that case in any way, but there is a question about whether/when it is OK or even desirable for judges to intervene "indirectly" with

Not to defend the judge in that case in any way, but there is a question about whether/when it is OK or even desirable for judges to intervene "indirectly" with their power. For example (just an example, not suggesting this is how it was), suppose in the case you mention that the mother was suspected of being abusive or negligent, but that a prosecutable case couldn't be made for that, and that the traffic tickets were used merely as a guise for the sentencing. If that were the case, I don't think judges actions would seem quite so harsh, and might even seem appropriate (it doesn't require a massive stretch of the imagination to think of a case where this is true). And no matter the reasoning (or lack of it), the fallout of this (where the kids are harmed/molested in foster care) is hard to attribute to the judge. If the mother had been a serious threat to the children and the judge had sentenced her based on truly unquestionable reasons, they still might have met the same fate in foster care. As part of the legal system, the judge basically has to have complete confidence in the integrity of the foster care system (and it isn't his job to ensure that integrity).

Fjolsvith 6y ago
> but that a prosecutable case couldn't be made for that So we suddenly have proven guilty without proof, but rather just because there's some suspicion. Doesn't seem American.
- logicchop 6y ago
  That's wildly naive and I think with a little bit of imagination you too can envision a scenario where it makes sense. It needn't be "wild guessing" on the judges behalf; there could be even absolutely convictable evidence that would cause any reasonable person to immediately and unquestionably believe in the guilt of the mother, yet might be barred because of a rule governing the admissibility of evidence (that's its own ugly topic). In such a case I find it hard to believe that a judge taking it on himself to "do the right thing" would be seen as "un-American"
  - lmkg 6y ago
    We have the Rule of Law for a reason. If there's an issue with the system where guilty people are going free, then fix the system. Letting people take justice into their own hands is a cure worse than the problem, especially when those people are abusing the authority that was given to them to enact the justice that was created by a democratic process. A judge enacting a sentence based on inadmissible evidence is a violation of the rights of the accused, the Constitution, and the specific oaths and duties of their profession.
    - logicchop 6y ago
      Again, wildly naive. There is no "rule of law" that is so prescriptive. We basically have a loose confederation of laws, interpreted by courts, and exacted by humans. There is flexibility in various aspects, including sentencing, and things like that are (when they are) left to the discretion of the judge precisely because there is no formula otherwise. There is nothing about this that violates anyone's oath or duty, and nothing about it is inherently wrong. That is precisely the space that judges occupy that no formula can fill.
      - jschwartzi 6y ago
        What does that have to do with your original assertion, that it's totally fine for a judge to sentence a woman to 496 days in jail for unpaid traffic tickets because she's suspected of being an unfit mother? What do those two things have to do with each other? And why would we accept a justice system where it's okay for judges to convict people of unrelated crimes? What about that is just?
        logicchop 6y ago
        "What does that have to do with your original assertion, that it's totally fine for a judge to sentence a woman to 496 days in jail for unpaid traffic tickets because she's suspected of being an unfit mother?" This is an absolutely absurd "reading" of what I said, and it is patently offensive. Please look again.
jmoss20 6y ago
Surely you notice those two points conflict? 1. The judge must understand that the (justice) system is flawed, it's his/her job to bring about justice anyway. 2. The judge must believe the (foster care) system is flawless, it's not his/her job to worry about that.
- logicchop 6y ago
  1. I don't think the judge has to believe the justice system is flawed. It might just be that the justice system has limits, and that sometimes those limits are not sufficient to bring about the best outcome. Again, consider prosecutorial discretion and how it is used. 2. I don't think the judge has to believe it is flawless. In fact, the judge might believe that it is not flawless, and again exercise in the opposite direction of NOT sentencing someone who would otherwise be correctly sentenced just to keep kids out of a bad foster care system. My point was that, barring a situation where the judge has grounded suspicions about the foster care system, the judge must basically (as a principle of law) endorse the foster care system as a viable caretaker of the children. Judges would otherwise be required to initiate investigations into foster care systems (and the like) whenever they might be utilized in a legal setting. That's an impossible burden.
  - jmoss20 6y ago
    You still haven't resolved the inconsistency.
diob 6y ago
Those are some intense mental gymnastics.

Fjolsvith 6y ago

> but that a prosecutable case couldn't be made for that So we suddenly have proven guilty without proof, but rather just because there's some suspicion. Doesn't seem American.

logicchop 6y ago
That's wildly naive and I think with a little bit of imagination you too can envision a scenario where it makes sense. It needn't be "wild guessing" on the judges behalf; there could be even absolutely convictable evidence that would cause any reasonable person to immediately and unquestionably believe in the guilt of the mother, yet might be barred because of a rule governing the admissibility of evidence (that's its own ugly topic). In such a case I find it hard to believe that a judge taking it on himself to "do the right thing" would be seen as "un-American"
- lmkg 6y ago
  We have the Rule of Law for a reason. If there's an issue with the system where guilty people are going free, then fix the system. Letting people take justice into their own hands is a cure worse than the problem, especially when those people are abusing the authority that was given to them to enact the justice that was created by a democratic process. A judge enacting a sentence based on inadmissible evidence is a violation of the rights of the accused, the Constitution, and the specific oaths and duties of their profession.
  - logicchop 6y ago
    Again, wildly naive. There is no "rule of law" that is so prescriptive. We basically have a loose confederation of laws, interpreted by courts, and exacted by humans. There is flexibility in various aspects, including sentencing, and things like that are (when they are) left to the discretion of the judge precisely because there is no formula otherwise. There is nothing about this that violates anyone's oath or duty, and nothing about it is inherently wrong. That is precisely the space that judges occupy that no formula can fill.
    - jschwartzi 6y ago
      What does that have to do with your original assertion, that it's totally fine for a judge to sentence a woman to 496 days in jail for unpaid traffic tickets because she's suspected of being an unfit mother? What do those two things have to do with each other? And why would we accept a justice system where it's okay for judges to convict people of unrelated crimes? What about that is just?
      - logicchop 6y ago
        "What does that have to do with your original assertion, that it's totally fine for a judge to sentence a woman to 496 days in jail for unpaid traffic tickets because she's suspected of being an unfit mother?" This is an absolutely absurd "reading" of what I said, and it is patently offensive. Please look again.

jmoss20 6y ago

Surely you notice those two points conflict? 1. The judge must understand that the (justice) system is flawed, it's his/her job to bring about justice anyway. 2. The judge must believe the (foster care) system is flawless, it's not his/her job to worry about that.

logicchop 6y ago
1. I don't think the judge has to believe the justice system is flawed. It might just be that the justice system has limits, and that sometimes those limits are not sufficient to bring about the best outcome. Again, consider prosecutorial discretion and how it is used. 2. I don't think the judge has to believe it is flawless. In fact, the judge might believe that it is not flawless, and again exercise in the opposite direction of NOT sentencing someone who would otherwise be correctly sentenced just to keep kids out of a bad foster care system. My point was that, barring a situation where the judge has grounded suspicions about the foster care system, the judge must basically (as a principle of law) endorse the foster care system as a viable caretaker of the children. Judges would otherwise be required to initiate investigations into foster care systems (and the like) whenever they might be utilized in a legal setting. That's an impossible burden.
- jmoss20 6y ago
  You still haven't resolved the inconsistency.

diob 6y ago

Those are some intense mental gymnastics.