Terry Williams, a boy who killed two men who had sexually abused him, is in a state of flux right now, technically on death row but momentarily safe due to the Pennsylvania governor's moratorium on the death penalty. Ronald Castille was the Philadelphia DA during Williams' original trial who approved his death penalty charge. Castille was also the chief justice of the Pennsylvania Supreme Court in late 2014, and overruled a lower court's ruling that Williams was entitled to a new hearing. The fact that Castille had been both prosecutor and judge in the case became its own case of contention and was argued in front of the Supreme Court last week in Williams v. Pennsylvania.
Williams's attorney succinctly highlighted the issue in this case when he said, “Due process does not allow a district attorney to make the decision to seek the death penalty against the defendant, and then in the same case become a judge of the conduct of the prosecutor who carried out that decision and obtained that result.”
Prosecutors who become judges should not be allowed to take any case handled by their former office of employment. If that's inconvenient, so be it. It should be inconvenient for a prosecutor to become a judge. It should be difficult.
Right now, a discomforting number of judges are former prosecutors, indicating an overarching personal preference in the complicated and unjust world of the criminal law process. This should not sit well with us. That’s not saying that every former prosecutor exhibits bias, but the idea that it is rare seems detached from reality. Bias is real and common, and a judge with bias contaminates the entire case. There have been situations before where former prosecutors become judges and remain overly punitive, handing down absurdly long sentences in a way that is reminiscent of their former roles.
Of course, prosecutors shouldn’t be entirely prohibited from becoming judges. Perhaps the answer is that former prosecutors must also work as public defenders before being appointed to the bench. Or perhaps we should appoint just as many former defense attorneys to the bench as former prosecutors. There are possible solutions.
Prosecutors and judges serve two different functions: Adversarial representative of the state on one hand, unbiased arbiter of justice on the other. To conflate them is to infect our entire justice system, and we should treat—and prevent—such an infection if we can.
A new Mother Jones article highlights just how extreme this issue is.
Prosecutors like Castille are appointed to the bench in far greater numbers than former defenders—even President Barack Obama has perpetuated this trend. Which is why it was so worthy of note that California Gov. Jerry Brown, under federal pressure to reduce incarceration in the Golden State, has broken with his predecessors and moved in the other direction. Northern California public station KQED recently pointed out that more than a quarter of Brown's 309 judicial appointments have been former public defenders, whereas only 14 percent were once DAs. (31 percent had some prosecutorial experience.) […]
When it comes down to it, politicians are still eager to appear tough on crime. But is it really good policy—financially or ethically—to stack the bench with judges who are accustomed to being rated according to the number of people they lock away?
This is yet another systemic issue that disadvantages defendants. Our justice system is based on protecting defendants, which was seen by our founders as the only way to ensure fairness in cases where a man has to defend himself against the state. But if judges have previously chosen the life of a prosecutor, it becomes more likely that they are not as unbiased as we need them to be. From Mother Jones:
"Most district attorney judges that I've experienced are unable to divorce themselves from their background once they become a judge," Michael Ogul, president of the California Public Defenders Association [said]. "They are still trying to help the prosecution, they are still trying to move the case toward conviction or toward a harsher punishment."
Behind the issue of judicial elections, the number of prosecutors on the bench is our country’s biggest problem related to the role of the judge.
There should be a stricter standard than the one Williams’ lawyer argued for last week, but Pennsylvania's lawyer, the one defending Castille's involvement in the case, argued to the Supreme Court that the standard should be much lower. Citing the Supreme Court in Caperton v. A.T. Massey Coal Co., he said that recusal should be required only when there is "an intolerable probability of actual bias in the case, no bright lines, no automatic, no presumptions. You have to look at the actual, the probability of actual bias in the case."
“Do you think that the public would find it unusual that someone who makes a decision as to whether to seek death penalty or not, that the public wouldn't perceive that as a great probability of actual bias?” asked Justice Sotomayor.
The standard for bias should be higher. If we are going to have prosecutors as judges, we must have high standards to prevent the kind of injustice that Williams is now facing.
