Cheryl Hanna, Brooke Bennett, and Judges

This morning, on Vermont Public Radio, Vermont Law School professor Cheryl Hanna spoke about the judiciary's role in educating the public how it functions in serious felony cases. Her commentary was prompted by the serious, and reasonable, public outcry after the death of Brooke Bennett, a teenager from Braintree, Vermont.

Bennett was last seen with her uncle, Michael Jacques, at a Randolph, Vermont convenience store. After a search, Bennett's body was found in Randolph, not far from her uncle's home. Her uncle, a convicted sex offender, has been charged with kidnapping Bennett, and media coverage has focused on allegations that Jacques has been involved with a child sex ring, child pornography, and that he may have attempted to initiate Bennett into his sex ring, allegedly nicknamed "Breckenridge." Thorough media coverage of the case can be found here.

One detail in the case has been especially troubling. In 2006, Jacques' probation officer recommended that Jacques be released from supervision. In 1992, Jacques had been convicted of violently abducting a high school senior from a Barre, Vermont bar, holding the woman a knife point, and threatening her unless she performed sex acts on him. At the 2006 hearing, the presiding judge at the time noted that the Vermont Department of Corrections considered Jacques a success story and model inmate. He was released, and naturally the public outcry has questioned whether Vermont is too lenient on sex offenders.

This morning, in her VPR commentary, Professor Hanna expressed her frustration, explaining that she is troubled by the judiciary's lack of response in the case so far. Said Hanna:

When judges simply say, "No comment," which may seem the prudent response, it erodes the public's support of the court system and may in fact lead the legislature to pass laws that will ultimately undermine the independence of the judiciary. Judges have to be willing to engage with the public about who they are and what they do. And, I think, if bad decisions were made, if only in hindsight, it can be helpful to discuss what went wrong and what steps can be taken to correct the problem.

We expect the executive and legislative branches to revisit their decisions and make improvements. The judicial branch has an obligation to do the same. Judges simply can't retreat from public scrutiny during a time of crisis. Rather, they would do themselves and Vermonters a great service were they to engage in some meaningful dialogue that gives us all a sense of moving forward.

Hanna makes a couple good points. We do live in an age when the independent judiciary is threatened. It's easy to blame a single, visible judge when the system fails and produces disjustice. It's much harder to blame the whole system, from timid legislatures, poorly trained police, and underpaid, overworked prosectuors. A judge provides a single face, and a person we can point our fingers at. Hundreds of legislators, dozens of police, and a few prosecutors make it more difficult to vent our anger.

But Professor Hanna's commentary is also troubling and shortsighted. She wants judges to engage in "meaningful dialogue" and to explain themselves to the public when the public does not agree with judicial decisions. In certain cases, she wants judges to revisit their decisions, presumably in the face of public outcry, and correct whatever error the public sees.

In principle, a meaningful, public dialogue is important. And, in fact, judges engage in dialogues like this all the time, from meeting with schoolchildren and speaking at conferences to writing books about what it means to make weighty decisions. But judges are limited; they are rightly expected to engage each legal problem they consider with a fresh and clear mind, free of prejudice. Too much dialogue can give the impression of pre-judgment. The judicial branch has no guns and has no money. It has one asset: that it is considered independent, fair, and learned, and that it is capable of making well-reasoned decisions. When judges sell out those qualities, or when they even appear to sell them out, the judiciary loses its authority.

So, Professor Hanna's commentary, in my opinion, is unfair. I don't think that it's judges or the judiciary that needs to explain itself, it's the whole of the legal system. And Professor Hanna is a part of that. Lawyers of all stripes need to explain to non-lawyers why people like Jacques get sent back into our communities, why sometimes the companies that pollute our water don't have to clean up after themselves, and why our President can do the things he does. Lawyers need to explain why the justice system sometimes breeds disjustice, because the greater evil here lies in an undereducated public. In the end, great ignorance breeds great disjustice.

Instead of angling for political office, the bench, bigger paychecks, and professional esteem, right now law professors and attorneys should spend some time reintroducing themselves to the public.