Hacker News Reader

Surely you notice those two points conflict?

1. The judge must understand that the (justice) system is flawed, it's his/her job to bring about justice anyway.

2. The judge must believe the (foster care) system is flawless, it's not his/her job to worry about that.

1. I don't think the judge has to believe the justice system is flawed. It might just be that the justice system has limits, and that sometimes those limits are not sufficient to bring about the best outcome. Again, consider prosecutorial discretion and how it is used.

2. I don't think the judge has to believe it is flawless. In fact, the judge might believe that it is not flawless, and again exercise in the opposite direction of NOT sentencing someone who would otherwise be correctly sentenced just to keep kids out of a bad foster care system. My point was that, barring a situation where the judge has grounded suspicions about the foster care system, the judge must basically (as a principle of law) endorse the foster care system as a viable caretaker of the children. Judges would otherwise be required to initiate investigations into foster care systems (and the like) whenever they might be utilized in a legal setting. That's an impossible burden.

You still haven't resolved the inconsistency.

> but that a prosecutable case couldn't be made for that

So we suddenly have proven guilty without proof, but rather just because there's some suspicion. Doesn't seem American.

That's wildly naive and I think with a little bit of imagination you too can envision a scenario where it makes sense. It needn't be "wild guessing" on the judges behalf; there could be even absolutely convictable evidence that would cause any reasonable person to immediately and unquestionably believe in the guilt of the mother, yet might be barred because of a rule governing the admissibility of evidence (that's its own ugly topic). In such a case I find it hard to believe that a judge taking it on himself to "do the right thing" would be seen as "un-American"

We have the Rule of Law for a reason. If there's an issue with the system where guilty people are going free, then fix the system. Letting people take justice into their own hands is a cure worse than the problem, especially when those people are abusing the authority that was given to them to enact the justice that was created by a democratic process.

A judge enacting a sentence based on inadmissible evidence is a violation of the rights of the accused, the Constitution, and the specific oaths and duties of their profession.

Again, wildly naive. There is no "rule of law" that is so prescriptive. We basically have a loose confederation of laws, interpreted by courts, and exacted by humans. There is flexibility in various aspects, including sentencing, and things like that are (when they are) left to the discretion of the judge precisely because there is no formula otherwise. There is nothing about this that violates anyone's oath or duty, and nothing about it is inherently wrong. That is precisely the space that judges occupy that no formula can fill.

What does that have to do with your original assertion, that it's totally fine for a judge to sentence a woman to 496 days in jail for unpaid traffic tickets because she's suspected of being an unfit mother? What do those two things have to do with each other? And why would we accept a justice system where it's okay for judges to convict people of unrelated crimes? What about that is just?

"What does that have to do with your original assertion, that it's totally fine for a judge to sentence a woman to 496 days in jail for unpaid traffic tickets because she's suspected of being an unfit mother?"

This is an absolutely absurd "reading" of what I said, and it is patently offensive. Please look again.

I'm fine with a broad range of judicial discretion. Human judgement is a necessary part of the judicial system.

I am not fine with someone being sentenced and jailed for a crime they were not found guilty of, which is what you're describing. That's an abuse of power and a deprivation of due process.

I am not replying to disagree with the spirit of your comment. I just think you should be a bit more careful thinking about it. Obviously she was not jailed for a crime she didn't commit and wasn't convicted of; she was jailed for a crime she did commit and was convicted of. The question is psychological though, about whether the sentencing decision, within the in murky realm of discretion, was based purely on facts completely bound by the scope of the conviction, or whether it extended beyond the scope of the conviction. And the answer is, it always extends beyond the scope of the conviction.

I ask you again to just use your imagination; set aside this particular case and imagine a case where there is absolutely compelling grounds for thinking that the mother is a direct harm to her children, but no admissible evidence to establish that in a legal context. So given the legal "room" to hand down a harsher-than-would-otherwise-be sentence for some separate offense, that doesn't strike me as totally inappropriate or out of line with our expectations about what judges should do. This of course requires the legal establishment of the "room" for judges to do such things, but they have that to a large extent.

> [...] imagine a case where there is absolutely compelling grounds for thinking that [...]

FYI the system which we are discussing does not entertain such a notion. Or else we wouldn't need or bother with juries, whose main job is to deliberate and argue over whether presented evidence is compelling enough to remove any possibility of doubt.

> So given the legal "room" to hand down a harsher-than-would-otherwise-be sentence for some separate offense, that doesn't strike me as totally inappropriate or out of line with our expectations about what judges should do

I... _wildly_ disagree with this. Not that my disagreement here should matter much – surely the justice/legal system has its own expectations here, that would trump yours or mine?

If the evidence is not admissible, then it should not be considered, period.

As an example of a judge taking it on himself to "do the right thing", U.S. District Judge Emmet G. Sullivan tried to conjure up some way to continue the prosecution of General Michael Flynn by appointing a special counsel after the US District Attorney had moved to dismiss the case. [1] Judge Sullivan thus tried to act as prosecutor, despite a unanimous SCOTUS ruling that such action was not allowed, and was ordered by the Appeals Court to dismiss.

1. https://abcnews.go.com/Politics/michael-flynns-case-ordered-...

Those are some intense mental gymnastics.