Judicial Integrity: A Call for its Re-Emergence

Judicial Integrity: A Call for its Re-Emergence in the Adjudication of Criminal Cases
ROBERT M. BLOOM Boston College - Law School
Boston College Law School Research Paper No. 1993-02 Journal of Criminal Law and Criminology, Vol. 84, pp. 462-501, 1993

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=771587

Justice Rehnquist once said that there may be cases "in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial process to obtain a conviction." See, U.S. v. Russell, 411 U.S. 423, 431-32 (1973).

Our founding fathers were sensitive to the possible abuses of power by government and created three branches of government to assure checks and balances. The idea is that 'checks and balances' involves the importance of each branch curbing the excesses of the other branch. It is the idea that power can be successfully limited if it is shared and checked and balanced. The concept of checks and balances is associated with the independence and integrity of the judiciary.

Our founding fathers were sensitive to the perceived evils arising from the English system---a system in which the monarchy could utilize the courts for its own purposes.

According to Justice Brandeis's dissenting opinion, in Olmstead v. U.S., he said:

Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the ends justifies the means----to declare that the Government may commit crimes in order to secure the conviction of a private criminal----would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face. Omstead v. U.S., 277 U.S. 438 (1928) at 485.

Decisions based upon sound principles may often be unpopular, especially where the accused appears guilty of a crime. The judicial branch in America was envisioned by the founding fathers as an independent branch not subject to outside influences or the popular demands of the masses. The fickle whims of the public are not a proper influence, as the courts need to rise above the fray and maintain themselves as a symbol of lawfulness. As stated by Justice Frankfurter, "public confidence in the fair and honorable administration of justice, upon which ultimately depends the rule of law, is the transcending value at stake." See, Sherman v. U.S., 356 U.S. 369, 380 (1957). It is in the long-term interest of society based upon the rule of law that its courts should be a symbol of lawfulness.

The full qoute by Justice Frankfurter, in the Sherman decision is as follows:

Insofar as they are used as instrumentalities in the administration of criminal justice, the federal courts have an obligation to set their face against enforcement of the law by lawless means or means that violate rationally vindicated standards of justice, and to refuse to sustain such methods by effectuating them. They do this in the exercise of a recognized jurisdiction to formulate and apply "proper standards for the enforcement of the federal criminal law in the federal courts," an obligation that goes beyond the conviction of the particular defendant before the court. Public confidence in the fair and honorable administration of justice, upon which ultimately depends the rule of law, is the transcending value at stake. See, Sherman v. U.S., 356 U.S. 369, 380 (1957) (Frankfurter, J., concurring).

In our political culture, society sees the court as a symbol of justice.

There has been a tendency to give the executive (police) more discretion, such as the loosening of the probable cause standard from the specific two pronged approach to the imprecise "totality of the circumstances" standard, while at the same time there have been more and more limits placed upon judicial discretion, such as sentencing guidelines and mandatory minimums, and enhancements. Thus, discretion is being created in the name of law enforcement, but there is a great reluctance to create it in the name of individual rights. Possibly, the re-emergence of principles of judicial integrity will act as a check on the increasing discretionary power of the police.

Government improprieties should not find an oasis within the court system.
See: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=771587