Be careful what you wish for. At least, when it comes to the judicial branch. Last week, we flagged a truly hideous incident in which a Montana judge, sentencing a convicted rapist for acts committed with his then-14-year-old student, made all sorts of preposterous statements about the victim. Not only was Cherice Morales, in the words of the judge, “older than her chronological age” when she had sex with her teacher, but she was also "as much in control of the situation" as her rapist. Morales committed suicide. The teacher was sentenced to 30 days in prison. The public was outraged. The judge apologized, several times. But the hue and cry did not abate, with 47,000 signatories to an online petition demanding his resignation and numerous calls for his impeachment.
On Wednesday, we learned that the state judge in question, district Judge G. Todd Baugh, will be resentencing the defendant, Stacey Rambold, 54, this Friday. In an order filed Tuesday, Baugh indicated that it appeared Montana law mandates that Rambold must actually serve a minimum two-year sentence. "In this court's opinion, imposing a sentence which suspends more than the mandatory minimum would be an illegal sentence," Baugh wrote in his order. Evidently defense counsel asked for the lower sentence, prosecutors failed to seek the mandatory minimum, and the whole thing needs to be recalibrated.
Mission accomplished? Not really. For one thing, the sentence itself was always only partly the issue. Baugh’s comments and the appalling way he shifted culpability from the perpetrator to the victim was the real error, and it’s not clear that resentencing alone solves that problem. But more profoundly, everything Baugh has done since the outcry arose last week has exacerbated the situation—not just for Morales’ family, Rambold, and the immediate parties to the case, but for judges everywhere and for justice as a whole.
It’s not clear from Montana law whether Baugh had the authority to order the resentencing in the first place—this might need to be done by the prosecution on appeal and not by the judge on his own initiative. But by doing so, he has called into question the whole principle of judicial independence. You can be very glad that this single miscarriage of justice stands to be corrected, but you should be equally worried about what this type of judicial rebooting means for the rule of law.
Judges need to be insulated from public opinion and interest groups, from online petitions, and yes, from angry editorial writers. That’s why federal courts and some jurisdictions don’t elect judges—judges serve the law, not the whims of the people. The Morales case is an extreme example of a miscarriage of justice, but it’s not clear that voting Baugh out is the only, or even the best, fix. One can as easily imagine a judge taking a beating for doing nothing wrong. This is what happened to Judge Russell Nigro, a former state Supreme Court justice in Pennsylvania, where judges are subject to “retention” votes in which the electorate votes "yes" or "no" on whether they should remain in office for the next term. After the Pennsylvania legislature passed a wildly unpopular law to raise lawmakers’ and judges’ salaries, voters used the judicial retention vote in 2005 to punish Nigro, who had absolutely no say in the matter since no legal challenge had come before the state Supreme Court.
The voters didn’t like the pay hike. They punished the recipient. “It doesn't make any difference whether you're good, bad or indifferent—you're gone,” said Nigro at the time, summing up the unprecedented action by voters. "What they did was an irrational thing. They sent a misguided missile." Same situation when a slate of three Iowa judges were removed by the electorate in 2010 for their votes in a same-sex marriage case. Reducing an entire judicial career to a single decision is not the same thing as judicial accountability. And creating online drives, petitions, and expensive campaigns to remove elected judges for an unpopular vote is the very opposite of an independent judiciary, even when the outcome is a just one.
It’s not only judicial independence that suffers when we begin to punish judges for unpopular decisions. Judges themselves begin to shift their behavior to follow the polls. A 2010 law-review article found that judges subject to contested elections are especially likely to “take into account the views of campaign contributors and interest groups that run television ads.” That’s a scary thought when you consider the 2012 election saw record-breaking spending, with special interests pouring millions into judicial campaign advertisements.
Judicial elections are a terrible form of public accountability. Although 87 percent of all state court judges face elections in this country, according the National Center for State Courts, we can’t forget what an anomaly this system truly is. Almost everywhere else in the world, judicial selection is based on merit, not popular will. In France, for example, aspiring judges must receive 27 months of specialized training at an elite academy and pass a four-day written test before donning a judge’s robe.
Baugh shouldn’t have been seated because the voters like him, and he shouldn’t be removed because the voters don’t. He should be seated because he is a trained expert in fairly applying the law, a fact that is not in evidence in this case. A study from the University of Chicago Law School suggests judges selected on merit simply write better legal decisions. “A simple explanation for our results is that electoral judgeships attract and reward politically savvy people, while appointed judgeships attract more professionally able people,” wrote Stephen J. Choi, G. Mitu Gulati, and Eric A. Posner, the paper’s authors. “However, the politically savvy people might give the public what it wants — adequate rather than great opinions, in greater quantity.”
The lesson of the Rambold case isn’t that judicial elections are a good mechanism to control bad decisions. The hundreds of protestors who rallied outside the Billings, Mont., courthouse holding posters that read “Resign” or “Justice 4 Cherice” should be acknowledged for their firm convictions, but they shouldn’t have been rewarded with a judicial do-over. If it turns out the sentencing error was due to prosecutorial error, Baugh will have learned nothing and admitted nothing.
Finally, the outcome here is terrible simply because Baugh is fixing the wrong mistake. The problem isn’t the mandatory minimums or prosecutorial error so much as it is his own profound failure to understand the nature of sexual abuse. Voting him off the island doesn’t fix the larger problem of judges who don’t understand that teen girls can’t give meaningful consent, much less “control” the relationship with a teacher. It just encourages us to vote other judges off the island as well and emboldens groups who target and harass judges for unpopular (but legally correct) decisions to double down. We already have a fix for judicial screw-ups of the magnitude seen last week in Montana: appellate review, motions to reconsider, and—in extreme cases—even impeachment.
So don’t let the lesson of this sentencing disaster be that judicial elections and massive public pressure solve all judicial problems. They create more complications than they address. The legal system has all sorts of procedural mechanisms to course-correct for outlier judges making dreadful decisions. What we can’t course-correct for is a population that is ever more ready to take the law, in the form of our judicial branch, into its own hands.