I've been in front of many many judges over my 21+ years practicing criminal defense. Their job is simple--to referee the game. Nobody comes to the game to see the referee, but how these judges call the game may influence the outcome. As the old saying goes, a good lawyer knows the law, and a great lawyer knows the judge. That's true, but knowing a judge's religious beliefs will not necessarily provide you with any more knowledge as to how harsh, or lenient, that judge may be. That fact is probably a sad commentary on how our beliefs affect our decisions at work. As a Christian, I wouldn't make a very good judge, because Christianity requires a bit a mercy and love. Mercy, essentially, suspends justice. But as a judge, your job is to dispense justice, not mercy. It is disappointing for me to see judges that call themselves Christians hand down completely unmerciful decisions. We're going to take a look at just such a decision today.
Recently, an appeals court overturned a rape sentencing due to judicial comments regarding religion. Obviously, religion has no place in the courtroom, but as a defense attorney, a tad bit of mercy every now and then is much appreciated. And, to no surprise to some of you, but much of the judicial mercy I've seen comes from judges that are not particularly religious. To make matters worse, the harsh sentences often come from so-called religious judges. Again, hypocrisy can be frustrating, but certainly not surprising. Today, let's examine the role religion is permitted to play in the sentencing of Florida's defendants. The case is Torres v. State, 124 So. 3d 439 (Fla. 1st DCA 2013).
Torres received a 30 year prison sentence for sexual battery. That's the maximum sentence, for those of you keeping score out there. At his sentencing, the Defendant's father explained to the judge "Your Honor, I am here to tell you who is my son. And I'm telling you the truth because I am a Catholic and I believe in the Bible. As a father that I am, I could tell you that my son is innocent." Unfortunately, this comment took the sentencing in a whole new direction, with the judge telling Torres that "You're a good Catholic fellow as I am. That's not the way Catholic people - - that's not the way anybody with morals should do anything." Because the judge opened the door, on the record, that he is a good Catholic, let me remind the folks out there about some important Christian morals:
Love your enemies, do good, and lend, hoping for nothing in return; and your reward will be great, and you will be sons of the Most High. For he is kind to the unthankful and evil. Therefore be merciful, just as your Father also is merciful. Luke 6:35-36.
Ok. "Be merciful". What does that mean? Does that mean hand out maximum sentences as a Christian judge? Is a maximum sentence ever merciful? Look, this judge could have given Torres as little as 9 years and 4 months, but decided to give the max instead. The most disappointing moments I have experienced as a defense attorney have been the small number of blatantly unmerciful sentences handed down by judge's who are (call themselves) Christians. As a Christian, this makes me sad. (One of my favorite Christian t-shirts during the Iraq war stated "When Jesus says love your enemies, I'm pretty sure he meant don't drop bombs on them." Same goes for maximum sentences, right? Where Is the Love?)
Anyway, the good news is that Torres' maximum sentence was overturned by the appeals court, due to the numerous religious references made by the judge. Religion is an impermissible sentencing factor. The appellate court reasoned that "because the court's comments could reasonably be construed as basing the sentence, at least in part, on religion, and because we cannot say that the sentence would have been the same without the court's impermissible consideration of religion, we vacate appellant's sentence and remand for resentencing before a different judge." id. at 442.
The concurring opinion in Torres also found that "when religious references, or appeals to religion, are made by participants in the sentencing phase of a criminal case, it places the trial judge in a difficult position; he can ignore, acknowledge, or nimbly skirt the matter. If he engages the subject, making a religiously-themed or religiously-based comment, it opens the door to criticism that the sentence ultimately imposed was due to an improper factor...Thus, it appears that religious references by trial judges in the sentencing context--though potentially risky--are not per se impermissible; they become problematic, however, if they are used--or reasonably appear to be used--as the basis for the sentence itself." id at 443.
We Christians are called to be merciful. It's a tough thing to do. I don't have as much mercy as I would like, but I'm not running for judge either. If you're a Christian, and you want to be a judge, think about how you can love the defendants that may be "unthankful and evil". Can you have mercy? If not, maybe you should find a job more compatible with your faith. Same goes for prosecutors. Same goes for defense attorneys (I don't have much mercy for those that can't afford my services...I've got to work on that..).