Author:Tiner, Emma L.

Some wore construction vests, others plaid flannels, and one wore a bandana. Tattoos were a common theme. They had come from work, because even court dates did not guarantee a day off. When they were asked to describe their occupations, they were grueling: railroad and construction work. Some of them still had on vests striped with reflective tape. And above all, hanging in the air was an unspoken question: how many times had these men been in a courtroom before?

Maybe they'd even been in this courtroom.

But mercifully lacking were the green jumpsuits, the jangle of chains, and the hovering presence of two probation officers to a man. These men filed into the jury box, not the defendant's seat. They looked sober, but not downtrodden.

Only the judge remained in an unchanged position, the same seat raised above everyone else at the same height as always, treated with the same perennial deference. And, as always, everyone stood when he entered the room.

But what unfolds next, in the Northern District of New York, and what unfolds in other reentry court proceedings across the country, bears little resemblance to a typical hearing or sentencing. In fact, it may be one of the most promising harbingers of change in a system that has too often made judges into grim, omniscient figures who have little involvement in the possibility of felons' recovery. Judges used to have a more hands-on involvement with the felons they convicted, modifying their sentences upon the prisoner's petition, (1) but the practice fell away when "law and order" motivations from the last few decades of the twentieth century led to a more finalistic, draconian approach to sentencing, imprisonment, and release. (2) During a twenty-year period, incarceration rates in the United States skyrocketed, with the number of American prisoners increasing fourfold. (3) Since the vast majority of incarcerated prisoners are eventually released, the number of felons reentering their communities were presented with challenges and stigmas at every turn, even though being a felon had become much more statistically probable. (4) Largely, this trend can be traced to a change in handling drug-related offenses, specifically the now-infamous scheme of New York Governor Nelson Rockefeller's policy, which imposed lengthy mandatory sentences for even relatively minor crimes of drug possession. (5) Rockefeller's plan for an offensive attack on drugs was soon adopted and modeled by other states and by the federal government, effectually reshaping the incarceration system across the United States. (6)

In the face of such a grim reality, there has been recent pushback. (7) Reentry courts and programs, modeled after drug courts, (8) are a potential support that has begun to develop in the past few years. (9) Central to the drug court model is the role of "judge as the leader." (10) This aspect of continuity--for in court proceedings, the judge's power is recognized and omnipresent (11)--suggests the possibility that there is something indispensable about the judge as judge. It is a role which, though sometimes weaponized against criminal defendants, could also be used to their benefit. (12)

Widening the focus on the issue as a means of better exploring it, there are philosophical underpinnings to the judge's role in rehabilitative contexts that can be used in continuing attempts to reshape the incarceration and post-incarceration interactions between courts and felons.

Why were those men in the Northern District courthouse that day? It was the same sort of reentry program that has been developing around the country. (13) The men were meeting with a judge to determine if they had earned the next credit (out of a possible twelve) that would potentially shorten their probation sentences. (14) To earn these credits, they had to do more than lose a few hours at work. Their personal achievement goals ranged from taking college courses, to connecting with absent or estranged family members, to finally earning a driver's license. The paths they were following were far from easy, and every day they were required to check in with their probation officers. (15) These were men who had a faulty track record when it came to interacting with traditional authority figures. (16) Judges on the bench had never held much promise for them.

This program might be only a small step to changing that. But most compelling of all to witness was a filament of the whole experience--the interaction between the judge and these reentering men was utterly unlike the typical recorded exchanges that end in guilty pleas and acknowledgment of sentences. Instead of dispensing a grim sentence, the judge asked them about their families, their jobs, and their accomplishments. The power disparity was still keenly present, but "justice" felt less like a death knell.

My argument in this paper is that a Natural Law and Interpretive approach derived from Thomas Aquinas, Lon Fuller, and Ronald Dworkin supports increasing direct judicial involvement as a crucial element in rehabilitation and reentry programs for drug offenders. The significance of the judge's authority role can afford indispensable support to this countercultural approach and can allow offenders an opportunity to interact with the obligatory aspect of law as a way of reaching attainable, positive goals.


    1. Natural Law or Legal Positivism?

    Thomas Aquinas, (17) living as he did in the thirteenth century, likely never considered judicial roles as they are known to us today. (18) Nonetheless, his role as the progenitor of many precepts of Natural Law provides insight into the philosophical basis for judicial leadership as it connects to larger concepts of equitability and goodness. (19) Aquinas recognized the fundamental "uncertainty of human judgments," and supplied an overarching, attainable goodness and justice inherent in nature and creation. (20) Some of his assessments seem to dance around the authority of judge-like figures, in his discussion of positive law (21) and his statement that "laws are said to be just... from the lawgiver, namely when the law passed does not exceed the lawgiver's authority." (22) Therefore, Aquinas seems to acknowledge some judicial role. And in so doing, his understanding of the universality of justice reflected judiciousness on the part of law-makers and enforcers. Aquinas's concern was whether human ("positive") law comported with what he described as "divine" and "eternal" law--the underlying truths of existence upon which God had shaped the physical and relational universe. (23) To distill Aquinas's analysis to one that is only relevant in a religious context is to miss the suggested empowerment it gives to each individual's experience and interaction with fellow humankind and the mystery of "law." Could not Aquinas's understanding of "divine law" be read to mean that there are certain truths and common values which individuals can and should protect and model? Certainly there are tenets and themes to the human practice of developing legal systems which go back to ancient times and are reflected in our laws today: consider, for example, considerations of fairness, truth, and the need for evidence in the "Laws of Hammurabi," a Mesopotamian text from 1792 B.C. (24) The harshest recorded penalties in Hammurabi's time were linked to the failure of accusers to provide evidence against the accused. (25) This prospect of false charges and unjust treatment of innocent individuals, even long ago, incites particular horror. Though the texts of Hammurabi focused on malicious accusations, underlying this ancient "statute" was the idea that law should not cause unnecessary or unearned suffering. (26) Aquinas reflects this in his admonition that legal oppression lacked any obligatory moral power. (27) Again, though Aquinas does not explicitly describe a judicial authority figure, the need for such a leader is no great stretch. Who else would weigh the dangers of unjust accusers--even if, or maybe especially if, unjust accusations are developed by unfair weighting in the legal system? Fixing a judicial leader in the reentry structure is particularly necessary to bridge the gap for those who are less inclined towards the "divine," religious aspects of Aquinas's theory, and who are therefore left unsatisfied by Aquinas's promise that these unjust laws are without binding merit. (28)

    What, therefore, could this mean for the modern era? What would Aquinas say to judges? For one thing, Aquinas would likely hold that judges are not invested with power exceeding reason. (29) Judges, as members of humankind, are bound by the same necessary alignment to "the common well-being" which alone can obligate individuals. (30) That concern for common well-being should not end with a conviction, or a prison sentence served. Indeed, it is arguable that newly released felons are most, in need of being redirected towards participating in that search for common wellbeing of humankind. (31) Punishment may awaken fear of law, but not appreciation of it. Infusing a legal or quasi-legal proceeding with at least some degree of mercy and mentorship at least sketches out a structural shift that could change views on the law.

    But it is not merely those who feel the consequences of the system who can be influenced by procedural changes motivated by these philosophical tenets. Aquinas's Natural Law theory can be synthesized in his own words: "Law has as much force as it has justice." (32) Faced with unjust laws, or unjust abandonment of those who have suffered from the application of law, a Natural Law perspective can lend a great deal of insight into the road to rehabilitation not only of individuals, but also of the system which engages offenders whose crimes have been made reprehensible by legislative scheme alone. (33)

    More than one philosophical theory can be discussed in the battle between...

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