The Judicial Process, Defined

Last week I bemoaned the fact that those of us who do work in the judicial process area have no organizational home of our own. My aim in this post is to talk a little bit more about what I’ve got in mind when I talk about the judicial process as a field of learning. Probably the best way to do so is to describe the seminar I’m teaching this semester, “Judging and the Judicial Process,” which provides a pretty good first cut.

Our focus, as I put it in the course description, is “on courts as institutions and on judges as the primary actors within those institutions.” We started with what one might call the “standard” model of judging, which calls for judge-umpires to apply determinate law via formalist analysis. Then we pretty much blew it up, considering the work of the legal realists, public law theorists, political scientists, cognitive scientists, and so on.

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Priorities for the Next President: Criminal Justice Policy

I’ve just received the latest issue of the Federal Sentencing Reporter, which is entirely devoted to ideas for criminal justice reform for the next Administration. The contributors are an amazingly diverse and well-credentialed bunch, including two U.S. Senators, two Congressmen, two representatives of the U.S. Department of Justice, a judge of the Missouri Supreme Court, the head of the Minnesota Sentencing Guidelines Commission, the former special projects director of the U.S. Sentencing Commission, and representatives of the Heritage Foundation, the Cato Institute, the National Association of Criminal Defense Lawyers, the American Bar Association, the Federal Defenders, the private defense bar, and the legal academy. The contents are more specifically described through links here. (Unfortunately, little besides the table of contents is available for free download, although my own humble contribution to the issue is described in this post.  As an author, I do have a few extra copies that I would be happy to give away; please e-mail me your address if you are interested.) I look forward to reading what looks like a rich set of ideas by some of the most interesting thinkers and influential leaders in the criminal justice field.

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The Culpability of Passive Abuse

Last Friday, a Brooklyn mother was convicted of manslaughter in an infamous case that has, once again, led to soul-searching and overhaul of New York City’s child welfare system.  What is remarkable about this case is that the mother never struck a single blow; rather, her 7-year-old daughter was beaten to death by her stepfather.  Seven months ago, the stepfather was similarly convicted, and he is currently serving 26 1/3 to 29 years in prison.  Ironically, the mother could end up serving much more time than that, because she was also convicted of assault, unlawful imprisonment, and endangering the welfare of a child.

As any child advocate will tell you, the facts of cases such as this one are horrifyingly familiar: brutal beatings and sadistic tortures by one adult (in this case, the little girl was tied to chairs, held under cold water, and forced to use a litter box instead of a toilet), chilling acquiescence by another adult, and mistake after mistake by whatever public agency is supposed to prevent this kind of thing by early intervention into suspicious circumstances.  Nearly two decades ago another notorious New York case, which involved the beating death of another little girl, triggered a national discussion about accountability and responsibility on the part of the “passive” parent.  In that case, 6-year-old Lisa Steinberg was beaten unconscious by Joel Steinberg (who had illegally adopted her) while Steinberg’s partner, Hedda Nussbaum (pictured above), was in the next room.  Steinberg left the apartment for three hours, leaving the girl unconscious, and Hedda did not call for help until the next morning, when the child stopped breathing.  In the Steinberg case, though, Joel was convicted of the killing while all charges were ultimately dropped against Hedda.

Why the difference in outcomes? 

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