In Contemplation of “Better Judgment” by Emily Bazelon

By Alexis Pavlatos

On July 17, the New York Times online published an article by Emily Bazelon titled “Better Judgment,” which you can read here.  In brief, Bazelon discussed an inevitable element taking part in legal decisions that we too-often forget: the human aspect.  Even the most notable judges in history, as humans, have made mistakes.

In March of 1919, Oliver Wendell Holmes Jr. was one of the justices presiding over Schenck v. United States, in which he wrote the majority opinion, stating that free speech may be abridged in cases where it presents a clear and present danger.  But, when faced with the similar case of Abrams v. United States just months later, Holmes held an opinion nearly opposite of that which he held in Schenck, attributing his change-of-heart from his prior opinion simply to ignorance.  Bazelon’s own grandfather, one of the judges behind the implementation of the Durham rule, a since-abandoned test for legal insanity, was another judge who publicly admitted to having a change-of-heart.  But, in a more recent example, Bazelon referenced Judge Posner’s decision in Crawford v. Marion County, where he voted in favor of stricter voter identification laws in the state of Indiana. Six years later, Posner openly changed his mind after finding that once enacted, the law acted more as a vehicle to prevent poor and elderly citizens from voting rather than one for preventing fraud as he intended.

But, upon having the gaul to admit his fault, Posner received a firestorm of criticism.  One opinion columnist for the Washington Post published an article with a title that said it all: “Judge Richard Posner’s Mea Culpa Was Better Left Unsaid,” in which he made scathing comments about the Court, such as, “the American people give them $185,000 a year, plus life tenure, power and prestige, to be public servants — not public intellectuals”, and, “if it is realistic to be skeptical about judges’ capacity for deciding cases objectively, why should we trust their subsequent claims of error?”

With such harsh public response, Bazelon states, “The lesson was clear: It’s safer for judges not to admit misgivings.”  But, despite the wave of critique, Posner still staunchly stands that he made the right decision in admitting his error, stating that judges should not be bashful in their opinions, and that such “realism” in the legal system is essential.  In approval, Bazelon stated, “Posner’s attention to consequences can lead him, like other empirically minded judges, to change his thinking.”

But, while this attention to consequences plays a positive role in the judicial process by producing more transparency in the courts, does this same attention to consequences have a negative effect in the realm of law enforcement and wrongful convictions?  Moreover, are the consequences that law enforcement officials are paying attention to the wrong consequences?

This raises an important issue: in the eyes of some law enforcement officials, are the consequences for admitting their wrong about a potential suspect – possible lawsuits against the city, public backlash, communities’ loss of confidence in the force, their termination or demotion – thought of as worse than sacrificing an innocent man’s liberty by wrongfully putting him in prison, or even sacrificing an innocent man’s life by having him sent to death?  Are the lives of others appraised as being worth less than their position on the force?  Do these consequences cause police officers to search vehemently for self-fulfilling evidence to confirm their theory of a case, even when faced with conflicting evidence?

Supreme Court justices serve for life and do not face the risk of losing their job – there have been no impeachments since Samuel Chase in 1805, from which he was later acquitted – and with no risk of termination, there have still been few justices to recant.  Posner is a rare exception to that rule.  Police officers have much less job security, facing the risk of termination for retracting their opinions.  Furthermore, in this era, police officers spend their careers under the microscope of the media.  Admitting their wrongs may remove the confidence people have in the force and diminish feelings of safety in the community.  Especially after violent crimes, frightened communities expect someone to be held accountable.  It is very possible that this mindset may contribute to wrongful convictions, as officers may be pressured to abandon rational thinking, turning a sometimes innocent suspect into a scapegoat in an unfortunate example of confirmation bias.

Both law-makers and law-enforcers are human, and unavoidably, humans make mistakes.  Despite the oftentimes harsh consequences, we can only hope that the brave men and women in law enforcement possess the same integrity as Posner and the like who admit their wrongs under immense pressure.  On behalf of LAI, I say today that we applaud those in such professions who can admit their errors despite the possible backlash, and make good-faith attempts to serve justice.

Be sure to read Bazelon’s article, the inspiration for this piece, found here.

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