Don't you think it is a problem (and in fact the opposite of democratic and progressive) that some judges there have taken it upon themselves to ignore the decisions and will of the Argentinian people as to what is lawful and instead substitute their own judgment on social issues? Regardless of your opinions on the correct way for a society to treat drug abuse, don't you at least agree that it is the society, the people themselves, through their elected representitives, that should be making those decisions? Why even elect a government if judges are just going to do what they feel like doing anyway?
Judges aren't generally elected, although I have no idea the system in Argentina. A judge is not typically an elected official; rather, they are scholars and are trained on a particular subject matter - the law. They have been schooled and are supposed to be the one who interprets the law; this ensures fair trials for all. In fact, holding elections for judicial positions and for positions like prosecutors (at least here; again, I don't know the exact system there) is actually incredibly problematic. If you were arrested for a crime (whether you committed it or not, whether it was violent or not), would you want your fate decided by a judge who is educated in the law, thus interpreting your sentence according to the rules of land and therefore ensuring everyone fair treatment? Or would you rather be sentenced by someone who is obligated to his constituents (who may be really into the prison system) and quite possibly given a much harsher sentence then someone committing the exact crime as you elsewhere because it's what "the people" wanted...? Fair trials require impartial judges; elections do not ensure impartiality.
I agree with you that appointing judges who are fair, educated and impartial is a better method than electing them. We are not discussing the ups and downs of election vs appointment of judges.
Rather we are discussing whether those judges, regardless of how they are appointed, should apply the law of the land (as decided by the people's elected representitives in the PARLIMENT or other law making body) or make it up as they go along.
You hit the nail on the head when you insuiated that you would perfer a judge who would "interpret[]your sentence according to the rules of land and therefore ensuring everyone fair treatment"
The "rules of [the] land" require, in Argentia, that those who are convicted of violating the drug possession laws be punished. For a judge, elected or appointed, to ignore those rules because they disagree with the poilcy underlying them, represents the usurption of the soverign power of the people to be governed by laws of thier choosing. Instead a judge is now telling the people what the law is going to be according to his own beliefs about a social issue.
This isn't an issue about whether it is right or wrong to punish those who possess illegal drugs. The issue is who should decide whether punishment should be issued for that crime. The people, through their elected representitives in the legislative branch, or a single judge (elected or appointed doesn't matter)?
The problem is that judges,whether elected or appointed, are supposed to apply the law of the land, but they have no role in setting that law---that resides in the legislature. And legislatures are in fact elected. And they are subject to the whims of society--and surely you do not think, anonymous, that every one in a society has an equally heard, equally respected voice. Just look at what goes on in this country re: tough on crime electioneering---candidates outdo each other to establish with the electorate their bona fides as tough on crime---always approaching it from the "we have to get tougher' view, without regards to crime statistics (when the crime rate goes down we're still making more acts criminal and setting tougher sentences), regardless of the source of the clarion call that we need to get tougher, and without regard to any academic review of whether longer, tougher sentencing bears any fruit. Especially in the drug use situation, the studies are showing that simply incarcerating people, regardless of how long, does nothing to deal with the core issue of seeing that the person does not return to drug use after incarceration (and yes, they do stop while inside you will say---are you freaking kidding me?? there's drugs inside US federal prisons, and yes I can prove it just in the number of folks I have represented charged with that offense). Even the federal sentencing commission in the US, while bound by the laws passed by Congress, and recognizing the difficulty in backing off tough sentencing (especially when the House is up for election every two years),is now taking steps to come up with alternatives to incarceration, especially for drug offenders (there will be a big symposium on this issue in DC in July)---to try to come up with something that works, and because as a society we can no longer afford the incredible cost of incarceration. So, "society says" is not enough of an answer when society isn't keeping up with the impact on society of "society says"---the Argentine judges were right. And judges here are doing the same as they can.
lou, are you making the argument that because some people don't vote in large numbers or some individuals don't have the financial resources to contribute to political campaigns, that we should abandon the democratic process in favor of letting self proclaimed ‘educated’ judges decide what is best for us?
Reasonable people may (and always do) disagree. Just because you happen to agree on the underlying policy behind these judges decisions on this issue does not mean that you will agree with them the next time they depart from the law to do something THEY think is ‘right.’ This is a very slippery slope.
Whether you agree with the decision they made or not, surely you must admit the danger in allowing judges (or any other single persons in positions of authority) to substitute their judgment for that of the law?
I humbly submit that to suggest that we should allow people in positions of authority who have proclaimed themselves to be the smartest or fairest people, abandon the rule of law and make our decisions as a society abandons the fundamental principles of democracy, has not worked ever (despite being tried hundreds of times throughout history) and frankly, scares the hell out of me.
anonymous---I just don't happen to believe that legislators operate with the interests of vast segments of their constituents's interests in mind---I do believe that those with the most money, those who can buy a lobbyist, those who can threaten to expose a legislator as not tough [enough] on crime tend to be the ones that legislators listen to---and we have 20+ years of crappy sentencing policy in the state and federal arenas that are bankrupting us morally and fiscally. I do believe that judges have an obligation to do justice, and when they become aware that law/policy do not do justice, then judges should do whatever they can within their oath of office to do so. To follow your argument that if a legislature passed it that's the be-all, end-all, is to ignore the whole theory behind three co-equal branches of government/separation of powers.
On the contrary it respects the co-equal branches of government by requiring the judicial branch to respect the legislative branch (until and unless the legislative branch violates the supreme law of the land, here the Constitution, assuming it is the same in Argentina, but even then the rebuke of the judicial branch is line with the separation of powers).
I respect your opinion about severe sentencing, it sounds as if you are close to this issue and have a great deal of first hand experience with it. I also understand that the democratic system is not perfect and doesn’t necessarily represent the views of every last person. By its very nature (and the nature of people to disagree) it would be impossible.
At the base of it this. Society must have rules to function and let people know how they may act. Those rules must be based on judgments about public health, safety and morals. Those judgments should be made by legislators, elected by the people, who utilize the legislative process with all of its procedural safeguards and checks (even if it is not 100% perfect or infallible). If people feel under represented in that process they should work through democratic means to change that, the internet makes this easier now than ever.
Those judgments should not be made by a single judge who is, in effect, stating that the law is simply a guideline, but in the end that he / she will substitute his / her moral judgment for that of the rest of us.
Maybe I'm missing something here, but doesn't the WaPo article say that "separate federal tribunals here have ruled that a law penalizing the personal use of drugs is unconstitutional"?
Unconstitutional = in violation of the highest law in the land. If the Argentinian system is anything like ours (fair notice, I could be wrong), then the judges were deciding whether a particular drug law passed by the legislature violated the controlling constitution. That's basic Judicial Review 101, not a power grab by judges gone wild. And maybe they're wrong as a matter of Argentine law - if so, they'll be reversed on appeal.
Maybe judicial review isn't such a great idea, but it's been settled law in the US for two centuries. I'm pretty sure it's spread beyond our borders, as well.
Welcome to the long run, a space to discuss the events currently affecting us and our community. We refer to this space as our long run because on the Oberlin College Track and Field team (where we met), the Sunday long run was our method of catching up on the week's happenings, discussing current events, and laughing at really ridiculous things no one else found funny. We hope you enjoy what we find interesting, are moved to post comments on what you also find interesting, and if offended, may it only be slightly.
9 comments:
Don't you think it is a problem (and in fact the opposite of democratic and progressive) that some judges there have taken it upon themselves to ignore the decisions and will of the Argentinian people as to what is lawful and instead substitute their own judgment on social issues?
Regardless of your opinions on the correct way for a society to treat drug abuse, don't you at least agree that it is the society, the people themselves, through their elected representitives, that should be making those decisions?
Why even elect a government if judges are just going to do what they feel like doing anyway?
Judges aren't generally elected, although I have no idea the system in Argentina. A judge is not typically an elected official; rather, they are scholars and are trained on a particular subject matter - the law. They have been schooled and are supposed to be the one who interprets the law; this ensures fair trials for all.
In fact, holding elections for judicial positions and for positions like prosecutors (at least here; again, I don't know the exact system there) is actually incredibly problematic.
If you were arrested for a crime (whether you committed it or not, whether it was violent or not), would you want your fate decided by a judge who is educated in the law, thus interpreting your sentence according to the rules of land and therefore ensuring everyone fair treatment? Or would you rather be sentenced by someone who is obligated to his constituents (who may be really into the prison system) and quite possibly given a much harsher sentence then someone committing the exact crime as you elsewhere because it's what "the people" wanted...?
Fair trials require impartial judges; elections do not ensure impartiality.
I agree with you that appointing judges who are fair, educated and impartial is a better method than electing them. We are not discussing the ups and downs of election vs appointment of judges.
Rather we are discussing whether those judges, regardless of how they are appointed, should apply the law of the land (as decided by the people's elected representitives in the PARLIMENT or other law making body) or make it up as they go along.
You hit the nail on the head when you insuiated that you would perfer a judge who would "interpret[]your sentence according to the rules of land and therefore ensuring everyone fair treatment"
The "rules of [the] land" require, in Argentia, that those who are convicted of violating the drug possession laws be punished. For a judge, elected or appointed, to ignore those rules because they disagree with the poilcy underlying them, represents the usurption of the soverign power of the people to be governed by laws of thier choosing. Instead a judge is now telling the people what the law is going to be according to his own beliefs about a social issue.
This isn't an issue about whether it is right or wrong to punish those who possess illegal drugs. The issue is who should decide whether punishment should be issued for that crime. The people, through their elected representitives in the legislative branch, or a single judge (elected or appointed doesn't matter)?
The problem is that judges,whether elected or appointed, are supposed to apply the law of the land, but they have no role in setting that law---that resides in the legislature. And legislatures are in fact elected. And they are subject to the whims of society--and surely you do not think, anonymous, that every one in a society has an equally heard, equally respected voice. Just look at what goes on in this country re: tough on crime electioneering---candidates outdo each other to establish with the electorate their bona fides as tough on crime---always approaching it from the "we have to get tougher' view, without regards to crime statistics (when the crime rate goes down we're still making more acts criminal and setting tougher sentences), regardless of the source of the clarion call that we need to get tougher, and without regard to any academic review of whether longer, tougher sentencing bears any fruit. Especially in the drug use situation, the studies are showing that simply incarcerating people, regardless of how long, does nothing to deal with the core issue of seeing that the person does not return to drug use after incarceration (and yes, they do stop while inside you will say---are you freaking kidding me?? there's drugs inside US federal prisons, and yes I can prove it just in the number of folks I have represented charged with that offense). Even the federal sentencing commission in the US, while bound by the laws passed by Congress, and recognizing the difficulty in backing off tough sentencing (especially when the House is up for election every two years),is now taking steps to come up with alternatives to incarceration, especially for drug offenders (there will be a big symposium on this issue in DC in July)---to try to come up with something that works, and because as a society we can no longer afford the incredible cost of incarceration. So, "society says" is not enough of an answer when society isn't keeping up with the impact on society of "society says"---the Argentine judges were right. And judges here are doing the same as they can.
lou, are you making the argument that because some people don't vote in large numbers or some individuals don't have the financial resources to contribute to political campaigns, that we should abandon the democratic process in favor of letting self proclaimed ‘educated’ judges decide what is best for us?
Reasonable people may (and always do) disagree. Just because you happen to agree on the underlying policy behind these judges decisions on this issue does not mean that you will agree with them the next time they depart from the law to do something THEY think is ‘right.’ This is a very slippery slope.
Whether you agree with the decision they made or not, surely you must admit the danger in allowing judges (or any other single persons in positions of authority) to substitute their judgment for that of the law?
I humbly submit that to suggest that we should allow people in positions of authority who have proclaimed themselves to be the smartest or fairest people, abandon the rule of law and make our decisions as a society abandons the fundamental principles of democracy, has not worked ever (despite being tried hundreds of times throughout history) and frankly, scares the hell out of me.
anonymous---I just don't happen to believe that legislators operate with the interests of vast segments of their constituents's interests in mind---I do believe that those with the most money, those who can buy a lobbyist, those who can threaten to expose a legislator as not tough [enough] on crime tend to be the ones that legislators listen to---and we have 20+ years of crappy sentencing policy in the state and federal arenas that are bankrupting us morally and fiscally. I do believe that judges have an obligation to do justice, and when they become aware that law/policy do not do justice, then judges should do whatever they can within their oath of office to do so. To follow your argument that if a legislature passed it that's the be-all, end-all, is to ignore the whole theory behind three co-equal branches of government/separation of powers.
On the contrary it respects the co-equal branches of government by requiring the judicial branch to respect the legislative branch (until and unless the legislative branch violates the supreme law of the land, here the Constitution, assuming it is the same in Argentina, but even then the rebuke of the judicial branch is line with the separation of powers).
I respect your opinion about severe sentencing, it sounds as if you are close to this issue and have a great deal of first hand experience with it. I also understand that the democratic system is not perfect and doesn’t necessarily represent the views of every last person. By its very nature (and the nature of people to disagree) it would be impossible.
At the base of it this. Society must have rules to function and let people know how they may act. Those rules must be based on judgments about public health, safety and morals. Those judgments should be made by legislators, elected by the people, who utilize the legislative process with all of its procedural safeguards and checks (even if it is not 100% perfect or infallible). If people feel under represented in that process they should work through democratic means to change that, the internet makes this easier now than ever.
Those judgments should not be made by a single judge who is, in effect, stating that the law is simply a guideline, but in the end that he / she will substitute his / her moral judgment for that of the rest of us.
This has been a great talk. I really enjoyed it.
Maybe I'm missing something here, but doesn't the WaPo article say that "separate federal tribunals here have ruled that a law penalizing the personal use of drugs is unconstitutional"?
Unconstitutional = in violation of the highest law in the land. If the Argentinian system is anything like ours (fair notice, I could be wrong), then the judges were deciding whether a particular drug law passed by the legislature violated the controlling constitution. That's basic Judicial Review 101, not a power grab by judges gone wild. And maybe they're wrong as a matter of Argentine law - if so, they'll be reversed on appeal.
Maybe judicial review isn't such a great idea, but it's been settled law in the US for two centuries. I'm pretty sure it's spread beyond our borders, as well.
oh, JDB, are you proposing a riff on RTFM (read the freakin' manual)here? RTFA, or RTFL, mayhap?
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