Chapter 2

Law and Official Discretion

 

Intro

          What do you think of when you think of a judge?

 

2.1              Judging Process and Judge’s Personality

A.     Jerome Frank, another legal realist

B.      Judges are results oriented (compare traditional approach, aka formalism)

C.      Lawyers start with a conclusion and work backwards

D.     Judges do the same (example of reckless driving intent cases)

E.      Judge’s background influences view of rules of law

F.      Judge’s background influences view of facts

G.      Survey of judges shows bias (p. 26)

H.     Frank’s famous quote:  You may as well look at “what the judge had for breakfast” to predict the result in a case.

 

2.2     Forgery Case

Facts:  D wrote bad check for $145.  Total bad checks about $1000.  24 years old, Mexican American.  Father died young.  Only completed 9^th grade.  Menial jobs.  Married with one child.  Several prior convictions (see chart)

Compare how different judges approach the problem.

 

2.3     Queen v. Dudley and Stephens, L.R. 14 Q.B.D. 273 (1884)

Facts:  D, S, and B were able seamen.  They were lost at sea in a lifeboat with a 17 year old boy.  They had only two pounds of turnips and no water.  They caught a turtle on the fourth day.  On the twentieth day, they considered killing the boy and eating him.  B said no.  D killed the boy, who did not  agree to being killed.  S consented to the killing.  All three ate him.  Four days later they were rescued.  It was probably boy would have died before rescue.  Also, it was agreed that without killing the boy, none would have survived.

 

Questions Presented:  Does the English court have jurisdiction?  Yes.

Is the killing murder under these circumstances?

 

Holding:  Yes.  “Necessity” is not a defense to murder.

 

Reasoning:  This is not like self-defense.  Also, necessity is not a defense to theft under English law.  In this case, defendants were under duty to sacrifice their lives.  Sometimes the law requires people to do things that most people would not do.  Also, where does necessity as an excuse end?  No way to draw a clear line.

 

Note:  Six months later, Queen commuted sentence to 6 months.

 

 

2.4 Incarcerated America, Human Rights Watch

          Latest statistics

                   Over 2m people imprisoned in America

                   Violent crime is down, why is imprisonment up?

                             Mandatory minimum sentencing

                             Three strikes law

                             Reduction in parole and early release

 

                   Startling findings

                   ¾ of new prison admissions are non-violent crimes

                   22% of state and federal prison populations are drug offenders

                   Blacks make up 12% of population at large, 44% of prison pop.

                    5% of all black men are incarcerated, compared to .6% of whites

                    Twelve states have over 10% of black male population in prison

                    See charts, p. 40-41

 

                    Why the racial disparity?

                              Drug offenses?

                              Racial bias in policing and sentencing?