Languish.org

I guess it's a cultural thing but wanted to double check.

I'd say popularity has no causal relationship with justice. The two are often at odds. So some immunity for judges from the whims of public sentiment is probably a good thing.

If we allow judges to be removed because they make unpopular decisions, then we may as well do away with judges.  Just decide each case by popular vote then. 

Oh I had to look to see what had you spinning now. I think with the case in question that certainly a committee should investigate whether or not what the judge did was legally sound. Particularly given that the sentence given was apparently less than the statuary minimum.

Quote from: garbon on June 08, 2016, 04:41:50 AM
Oh I had to look to see what had you spinning now. I think with the case in question that certainly a committee should investigate whether or not what the judge did was legally sound. Particularly given that the sentence given was apparently less than the statuary minimum.

I agree - but here we are talking about online petitions and people on Facebook calling for the judge to be removed from bench.

Quote from: Martinus on June 08, 2016, 05:03:35 AM

Quote from: garbon on June 08, 2016, 04:41:50 AM
Oh I had to look to see what had you spinning now. I think with the case in question that certainly a committee should investigate whether or not what the judge did was legally sound. Particularly given that the sentence given was apparently less than the statuary minimum.

That's a different matter but at least in Europe such disciplinary actions are taken by special authorities and not by a public vote.

Here you go.

https://www.themarshallproject.org/2016/06/07/how-easy-would-it-be-to-recall-the-judge-in-the-brock-turner-case#.x9O8lyNyD

QuoteAfter the sentencing last Thursday, hundreds of thousands of people became outraged, and social media lit up with calls — including one by a Stanford law professor — that the judge be recalled by popular vote. By Tuesday afternoon, a Change.org petition in support of that recall had accumulated over 415,000 signatures.

Yet recalling a sitting judge is almost unheard of, both in California and nationally. Nineteen states and Washington, D.C., allow the recall of state officials, but only eight allow it for judges — because the judicial branch is traditionally seen as deserving protection from popular whim, political pressure, or, as in this case, the increasing influence of social media.

"Recall is much, much more common for local and municipal officials, like school board officials and city council members," said William Raftery, a senior analyst for the National Center for State Courts. "Judges are only supposed to face recall, if at all, when they've committed a crime while in office or are deemed physically or mentally incompetent to actually do their job."

Indeed, of the states that allow judges to be recalled, most have statutes stipulating that it can only happen if the judge has committed some act of malfeasance — taking bribes, drunkenness in court, etc. — or nonfeasance — skipping hearings, struggling in old age to keep up.

The discretionary performance of a prescribed duty, like Judge Persky's decision in the Turner case, is rarely grounds for a recall.

In California, the process for attempting the recall a state official is somewhat easier, though still uncommon. Unlike other states, where reasons for recall are evaluated for merit, California's only requirement for a successful petition is that it follow a certain format and have enough signatures (calculated as a percentage of the number of voters in the last election). As a result, since 1913 the state has seen 49 attempts to recall governors and 27 attempts to recall Supreme Court justices. Those include former Gov. Gray Davis, who was famously recalled in 2003 and succeeded by Arnold Schwarzenegger.

But even in California, less prominent judges (essentially, all those not on the State Supreme Court) do not appear to face recall often. A review of local news accounts shows hardly any recall attempts of local judges in the past several years. Because these records are kept by court clerks in individual counties, statewide statistics are not available.

In one of the few attempted recalls of a superior court judge like Persky, the people of Orange County attempted to recall Judge Nancy Wieben Stock for granting O.J. Simpson custody of two of his children. The bid was unsuccessful.

Another recall attempt came just last year, in a case that bore some key similarities — and some key differences — with sentencing of Brock Turner.

After a jury convicted Kevin Rojano-Nieto of sodomizing a three-year-old child, Judge M. Marc Kelly sentenced him to 10 years in prison — rather than the statutory minimum of 25 years to life. Much as Judge Persky held in the Turner case, Judge Kelly contended that the crime was brief and impulsive, that Rojano-Nieto did not pose a long-term threat, and that a longer sentence would be "grossly disproportionate to the defendant's individual culpability."

And as in the Turner case, the judge almost immediately faced a national uproar. A Change.org petition gathered almost 85,000 signatures, calling Judge Kelly "reprehensible" for "showing empathy with the rapist" — who in this case was not an elite, white Stanford athlete but a 20-year-old Hispanic man with what Judge Kelly called a "dysfunctional" upbringing.

Judge Kelly soon fought back, writing in a statement that "this petition is an attack on judicial independence." The Los Angeles Times, in an editorial, argued that "the essence of the American justice system is that rulings are made by judges who are shielded from the heat of public emotion."

After failing to collect the minimum number of valid signatures, the petition failed.

The arguments on either side of the attempt to recall Judge Kelly may soon be echoed in the uproar over Judge Persky's handling of the Turner case. On the one side, social media users and advocates against campus rape have argued that in a time of great distrust of the criminal justice system — and of elected officials generally — the public should have more direct ways of holding its elected representatives accountable.

But opponents of recalling judges say that there can be such a thing as an excess of democracy, especially when it comes to the judicial branch.

As the Brennan Center for Justice has reported, attacks on judges for issuing "lenient sentences" and "failing to protect women and children" have the longer-term effect of making judges more likely to rule against innocent defendants and more likely to affirm death sentences.

"This heightened political temperature," wrote Alicia Bannon, an expert on judicial elections and recall, in a recent Brennan Center report, "risks exacerbating pressures to decide cases based on political...expediency, rather than on their understanding of the law."

Yup, exactly the type of popular sentiment I have a deep problem with.

Quote from: garbon on June 08, 2016, 04:41:50 AM
Oh I had to look to see what had you spinning now. I think with the case in question that certainly a committee should investigate whether or not what the judge did was legally sound. Particularly given that the sentence given was apparently less than the statuary minimum.

Which case is that?

What about appeal courts?  If a judge makes a mistake, then somebody should make an appeal so that a court up in the chain of command can rectify the mistake.  We already have an established and accepted mechanism to deal with judge mistakes. 

Quote from: Monoriu on June 08, 2016, 05:21:02 AM
What about appeal courts?  If a judge makes a mistake, then somebody should make an appeal so that a court up in the chain of command can rectify the mistake.  We already have an established and accepted mechanism to deal with judge mistakes. 

California also has an established mechanism, it is called a voter recall. :P

Quote from: The Larch on June 08, 2016, 05:19:01 AM

Quote from: garbon on June 08, 2016, 04:41:50 AM
Oh I had to look to see what had you spinning now. I think with the case in question that certainly a committee should investigate whether or not what the judge did was legally sound. Particularly given that the sentence given was apparently less than the statuary minimum.

Which case is that?

The Stanford rapist who was given 6 months in jail (state minimum is 2 years). Also causing big waves because of the victim impact statement given by the victim.

Quote from: garbon on June 08, 2016, 05:21:57 AM

Quote from: Monoriu on June 08, 2016, 05:21:02 AM
What about appeal courts?  If a judge makes a mistake, then somebody should make an appeal so that a court up in the chain of command can rectify the mistake.  We already have an established and accepted mechanism to deal with judge mistakes. 

California also has an established mechanism, it is called a voter recall. :P

Which, obviously, is wrong for reasons Mono and others have stated.

Quote from: Martinus on June 08, 2016, 05:35:03 AM

Quote from: garbon on June 08, 2016, 05:21:57 AM

Quote from: Monoriu on June 08, 2016, 05:21:02 AM
What about appeal courts?  If a judge makes a mistake, then somebody should make an appeal so that a court up in the chain of command can rectify the mistake.  We already have an established and accepted mechanism to deal with judge mistakes. 

California also has an established mechanism, it is called a voter recall. :P

Which, obviously, is wrong for reasons Mono and others have stated.

Maybe. At the same time, it has been a mechanism for quite some time and the dire scenario that Mono pointed out hasn't happened.

There's judicial review and judicial misconduct charges for this kind of issue. Recalling judges by popular vote seems a terrible idea to me. Any case with resonance among the media / internet is potentially compromised.

How exactly are California judges able to get away with giving convicted felons sentences that are less than the legal minimums?  Is there any judicial recourse for the state?  If not, what's the point of having minimum sentences on the books?

Not following the law in regards to sentencing sounds more like malfeasance or incompetence than simply making an unpopular decision.

Quote from: dps on June 08, 2016, 06:54:53 AM
How exactly are California judges able to get away with giving convicted felons sentences that are less than the legal minimums?  Is there any judicial recourse for the state?  If not, what's the point of having minimum sentences on the books?

Not following the law in regards to sentencing sounds more like malfeasance or incompetence than simply making an unpopular decision.

That's true - although normally it should be dealt with in appeal.

lots of judges don't always follow the law. I'm not sure how easy it is for an attorney to raise a stink about a shitty judge (not saying this judge was a shitty judge), but it doesn't seem to be exercised often (in part over fear of reprisal). and this is with truly incompetent judges not doing their work

nation/world-wide petition over a state judicial issue is pretty silly

finally, once again people upset about relaxed criminal sentencing one day, yet complaints about overly harsh laws and an overburdened prison system the next day

Quote from: dps on June 08, 2016, 06:54:53 AM
How exactly are California judges able to get away with giving convicted felons sentences that are less than the legal minimums?  Is there any judicial recourse for the state? 

Appeal the sentence.

Quote from: The Minsky Moment on June 08, 2016, 10:13:28 AMAppeal the sentence.

Does that happen often, in cases of rape?

And who would appeal it? The prosecutor, presumably, right? But isn't it usually the case that the prosecutor is making a sentencing recommendation? In this case, what was that recommendation? Where they part of the "deal"?

Looks like the prosecutor asked for a 6 year sentence. I suspect the will be appealing.

To the original question, I think is is asking the wrong question, actually.

The question is not "Should it be possible to recall judges" it should be "Should judges be elected in the first place". The answer to that question is, IMO, obviously FUCK NO.

But once you accept that we are going to elect judges, then the process by which they are elected should have a electoral process to remove them, ie a recall. If it is going to be based on the will of the people, then so be it.

So no, judges should not be elected, but yes, if you are going to elect them then they should be subject to recall.

Quote from: Berkut on June 08, 2016, 10:54:14 AM
And who would appeal it? The prosecutor, presumably, right? But isn't it usually the case that the prosecutor is making a sentencing recommendation? In this case, what was that recommendation? Where they part of the "deal"?

Can the victim appeal if the prosecutor does not?

Quote from: Martinus on June 08, 2016, 11:11:55 AM

Quote from: Berkut on June 08, 2016, 10:54:14 AM
And who would appeal it? The prosecutor, presumably, right? But isn't it usually the case that the prosecutor is making a sentencing recommendation? In this case, what was that recommendation? Where they part of the "deal"?

Can the victim appeal if the prosecutor does not?

Nope, the victim is not the legal entity taking action. It is the state.

Quote from: Berkut on June 08, 2016, 11:01:30 AM
The question is not "Should it be possible to recall judges" it should be "Should judges be elected in the first place". The answer to that question is, IMO, obviously FUCK NO.

Then how are the people going to select judges that are TOUGH ON CRIME???

Quote from: Berkut on June 08, 2016, 11:01:30 AM
So no, judges should not be elected, but yes, if you are going to elect them then they should be subject to recall.

I also think electing judges is a bad idea but I do not necessarily agree with your logic here - there are many positions and offices which can be elected but are not subject to recall (or such recall is only available in extraordinary circumstances).

Quote from: Berkut on June 08, 2016, 11:14:23 AM

Quote from: Martinus on June 08, 2016, 11:11:55 AM

Quote from: Berkut on June 08, 2016, 10:54:14 AM
And who would appeal it? The prosecutor, presumably, right? But isn't it usually the case that the prosecutor is making a sentencing recommendation? In this case, what was that recommendation? Where they part of the "deal"?

Can the victim appeal if the prosecutor does not?

Nope, the victim is not the legal entity taking action. It is the state.

What about private prosecution?

In Polish legal system the victim has a subsidiary prosecutorial role in that they can bring a private prosecution/private appeal if the public prosecutor refuses to act. The victim has to jump through some hoops (essentially, they need to first petition the prosecutor to act, need to get a formal refusal and then they need to persuade the court to accept the case for review) but it is technically possible. This is to prevent miscarriage of justice because of a prosecutorial incompetence or fraud.

For the record, this is a different concept from the one where certain crimes can only be prosecuted if the victim motions for prosecution (but we have it too - for example, in case of theft against a close relative).

Quote from: Martinus on June 08, 2016, 11:14:58 AM

Quote from: Berkut on June 08, 2016, 11:01:30 AM
So no, judges should not be elected, but yes, if you are going to elect them then they should be subject to recall.

I also think electing judges is a bad idea but I do not necessarily agree with your logic here - there are many positions and offices which can be elected but are not subject to recall (or such recall is only available in extraordinary circumstances).

True enough - I think you might be right here, but only if the position in question has some kind of relatively finite duration such that they will be up for re-election soon enough anyway, making a means to remove them less critical.

But I actually think THAT is a terrible idea for judges as well. They should NOT be subject to constant re-evaluation, and with the awareness that they need to accommodate the masses.

So I think judges should feel free to make unpopular decisions, however that manifests itself. That doesn't (or shouldn't) shield them from being held to account for making BAD decisions though.

Just for information, in Poland judges are appointed in a rather complex way.

We have a so-called national judical council, which is a mixed body composed of the heads of supreme courts (we have two, one for review of administrative decisions and one as the highest appeal from lower courts on all civil and criminal cases; like Germany and unlike the US, constitutional tribunal is entirely removed from the court system and rules only in abstracto on matters of constitutionality of laws passed by the Parliament), the minister of justice, one representative of the President, six representatives of the Parliament and 15 representatives elected by the self-governing body of judges. The elected members are elected for 4 years. The council recommends judical appointments for the President to approve (the President only has a veto - and it is very rarely used).

Once appointed, a judge is essentially "for life" (meaning until retirement age) and cannot be removed except on the basis of a ruling of the aforementioned self-governing body's disciplinary court. A judge also enjoys a full prosecutorial immunity that can only be lifted by the same disciplinary court.

Judges are forbidden from belonging to political parties, making political statements and generally being involved in politics.

The set up is historically meant to protect the judges from being harassed by the executive branch and to make sure they are independent. Obviously, the downside is that there is sometimes a perception that bad judges are very hard to remove because other judges protect their own.

In our lower courts 3 out of 5 judges (the 3 lay judges) are appointed by the political parties. This would seem to be an insane idea, and it is.

Ok it sounds like one.  :lol:

For the record, what I described above applies only to professional judges. Poland doesn't have a concept of a jury per se, but cases in our lower courts are decided by one or three judges (depending on importance) and those matters reviewed by three judges are reviewed by one professional judge and two lay judges, which are usually just people who sign up for the job (they are normally retirees and some such).

Quote from: Martinus on June 08, 2016, 11:17:45 AM
What about private prosecution?

Can't be 100% certain as to all 50 states but would guess no.

Quote from: Oexmelin on June 08, 2016, 10:46:37 AM

Quote from: The Minsky Moment on June 08, 2016, 10:13:28 AMAppeal the sentence.

Does that happen often, in cases of rape?

Don't have much experience on rape cases.

I like Poland's system better than our own.

Kind of amazed to be saying that about, well, anything. :P

re: appointed or elected judges, I don't think there's much difference overall. they're different systems, but both have the same result: some judges are shitty, some are good. a person navigates through his respective system to get either appointed or elected, and then he does his job in whatever capacity. this debate been discussed on languish before, and I don't think there's evidence that conclusively shows either system is better

Judge recall is a safety mechanism against judges that aren't doing right by the people. It gives the people a voice in a system otherwise controlled by elites.

The people in this case are not electing a judge. They are simply not retaining him.

It isn't a popularity contest. And those that stand as arbiter over law and order should have the confidence of the people they serve.

I am good with judges being appointed but if they are residing over criminal justice cases and the people feel justice isn't being served they should have an option to pull the plug. Unlike appeals, it gives people recourse outside of the courts and helps ensure judges don't end up in someones pocket.

Quote from: Berkut on June 08, 2016, 11:38:23 AM
I like Poland's system better than our own.

Kind of amazed to be saying that about, well, anything. :P

:lol:

Quote from: Jaron on June 08, 2016, 11:50:21 AM
Judge recall is a safety mechanism against judges that aren't doing right by the people. It gives the people a voice in a system otherwise controlled by elites.

The people in this case are not electing a judge. They are simply not retaining him.

It isn't a popularity contest. And those that stand as arbiter over law and order should have the confidence of the people they serve.

I am good with judges being appointed but if they are residing over criminal justice cases and the people feel justice isn't being served they should have an option to pull the plug. Unlike appeals, it gives people recourse outside of the courts and helps ensure judges don't end up in someones pocket.

Except that we have judges and justices precisely because "the people" are often not the best judges (pun totally intended) of whether or not justice is being served.

Quote from: DontSayBanana on June 08, 2016, 11:04:49 PM

Quote from: Jaron on June 08, 2016, 11:50:21 AM
Judge recall is a safety mechanism against judges that aren't doing right by the people. It gives the people a voice in a system otherwise controlled by elites.

The people in this case are not electing a judge. They are simply not retaining him.

It isn't a popularity contest. And those that stand as arbiter over law and order should have the confidence of the people they serve.

I am good with judges being appointed but if they are residing over criminal justice cases and the people feel justice isn't being served they should have an option to pull the plug. Unlike appeals, it gives people recourse outside of the courts and helps ensure judges don't end up in someones pocket.

Except that we have judges and justices precisely because "the people" are often not the best judges (pun totally intended) of whether or not justice is being served.

I disagree. We have juries for many trials. Judges oversee the case and decide sentencing. If people are competent enough, with vetting, to decide guilt or innocence in legal matters then it isn't a stretch to say that if a judge is widely seen as not giving fair sentences they can be recalled. It isn't like we're talking about them electing in a popular judge in his place. The new judge would still be appointed, but he has to have the faith of the people he serves.

People with money and power can use their influence to affect judges. This is a good counter measure to make sure the people can remove a judge they have no faith in. We elect district attorneys and we can vote on whether or not to retain judges. It gives judges an incentive to be fair and do their jobs according to the law. Otherwise its just a life time appointment and the judge can be as corrupt as they want to be unless they're impeached -- and if those people are disinterested or corrupt then the people would have no recourse at all.

A judge can't be "as corrupt as he wants to."  Bribery laws apply to them to.

I'm proud to have met the only Tennessee Supreme Court justice ever recalled in recent history (or possibly ever).  She was the newest member of the Court and voted with the slim majority in a 3-2 decision preventing the execution of a mentally-retarded man as unconstitutional.  This outraged the death-hungry populace and a recall campaign was mounted against her successfully.

So, who are the two Americans who voted yes? Jaron and garbon?

Quote from: Martinus on June 09, 2016, 04:58:18 AM
So, who are the two Americans who voted yes? Jaron and garbon?

I don't vote in your ridiculous shenanigans. You want to discuss California's recall system, have at it. You want to condemn California's system via a straw poll without evening mentioning what has you fired up? Pass.