Should judges be impartial? Or should defendants and victims be forced to endure a mockery of a trial conducted by a judge who’s already made up his or her mind on key elements of the case?
The folks who wrote the Arkansas Judicial Code of Conduct, like those who’ve written similar codes in probably every other state and civilized country, thought this one through carefully, and chose to lean toward the “impartial” camp. Here’s what they said: “A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary.”
Do you find that controversial? Me neither. In fact, the Arkansas folks thought that code was so important, they made it “Canon One” of their judicial code.
This means that in Arkansas, as in other places, if you’re a defendant in a murder case, you should have the right to a judge who doesn’t spend his off hours publicly whooping and hollering about how under-used the death penalty is, demonstrating a “Kill ‘em all!” bias. That wouldn’t promote public confidence in the impartiality of the judiciary, would it?
By the same token, if you’re the parent of a child who’s been sadistically tortured and murdered, should you have the right to have the killer sentenced by a judge who doesn’t publicly demonstrate his flat opposition to the death penalty in all circumstances?
Many humanists are opposed to the death penalty, period. I get that. I even agree with it, sort of, especially when I read about how often our justice system convicts innocent defendants. On the other hand, whenever I think about Timothy McVeigh, I own up to a small sensation of relief that I have not had to feed, clothe, and medicate that evil man these past sixteen years. Put me down as “ambivalent” on the death penalty.
What I’m not ambivalent about is humans’ right to govern themselves. God experts shouldn’t make the rules; people affected by them should. We can argue till we’re blue in the face that our justice system isn’t ever accurate enough to justify taking a defendant’s life, and maybe we’re right. But if the people of Arkansas and their elected representatives hear all these arguments and say, “No, we respectfully disagree” (a view shared by 60 percent of Americans), then I think their will should be carried out.
All of which is a long introduction to the situation of Wendell Griffen, a pastor and an elected judge in the Sixth District of Arkansas who opposes the death penalty, apparently on religious grounds. Judge Griffen is not alone in his opposition. But because he’s a judge, he can do something about his opposition to the death penalty. For example, earlier this year, Griffen supported an argument that a drug maker can bar the state from using their drug for lawful executions in order to improve the drug maker’s PR image. Sort of like Bayer saying you can use its aspirin for headaches but not for menstrual cramps, which come from God. Or a Jewish or Muslim knife manufacturer saying you can use its products to cut chicken, but not pork.
Maybe the judge is right. I haven’t read the opinion. But when a skeptic like me sees Judge Griffen posing as a corpse in a public demonstration against the death penalty on the same day he issued the above order, I can’t help but suspect that a little more than arcane property law was bouncing around his head at the time of the decision.
So if you were either a defendant or a victim’s relative in a capital case in front of Judge Griffen, who readily admits to having “strong views” on capital punishment, would you expect him to be impartial about a possible death penalty sentence? No, you wouldn’t. That is a slam dunk violation of the Code of Judicial Ethics.
What should be the penalty for such a violation? Should he be removed from the bench? Some people think so, and have called for his impeachment. At a minimum, fair administration of justice in Arkansas would require that no potential death penalty cases be assigned to a judge who has proven to lack the impartiality required. Which is exactly what the Arkansas Supreme Court did, announcing the bar shortly after the judge’s protest appearance.
Now Judge Griffen is on the attack, with a novel claim that the Arkansas “Religious Freedom Restoration Act” (RFRA) gives him the “religious liberty” right to ignore the Code of Judicial Conduct and act in as partial and biased a manner as he chooses—so long as he has a religious reason for doing so. And he’s not alone. The Cooperative Baptist Fellowship of Arkansas stands behind him, putting their religious beliefs squarely above the law, demanding that he not have his docket limited to cases where he hasn’t gone out of his way to demonstrate a bias.
If Griffen and the Baptists win on this, huge vistas of opportunity will open up for the God lobby. Judges will be free to proclaim how much they despise atheists, Muslims, or LGBT individuals, with no impact on the cases they are assigned or their continued service on the bench. They’ll be free to expound publicly on what God tells them about drug use, sexual promiscuity, or all the theology in favor of capital punishment, for that matter. Is this a good way to run a court?
Judge Griffen claims that every citizen enjoys the right to express their religious convictions. But the Code of Judicial Conduct already covers that one: “A judge should expect to be the subject of public scrutiny that might be viewed as burdensome if applied to other citizens, and must accept the restrictions imposed by the Code.” I have the right to drink beer—but not while I’m driving. He has the right to demonstrate on important public issues—but not while he’s serving as an “impartial” judge.
Some of the recent religious privilege victories have been so nutty it’s almost stupefying. I hope this case isn’t the next.