“Against The Popular Will”

Via the WSJ Law Blog, Middle District of Pennsylvania Judge A. Richard Caputo issued a decision that, by his own description, is “against the popular will.”  Did he free a horrific murder because his constitutional rights were violated?  Hardly.  He granted immunity to “Cash for Kids” judges Michael T. Conahan and Mark A. Ciavarella.  Black really does cover many flaws.


Writing that judicial immunity does not operate on a “sliding scale,” Judge Caputo ruled that the judges are protected by immunity from facing legal action for their courtroom acts. “The degree of corrupt behavior is not the touchstone of the immunity doctrine’s application,” Caputo wrote, acknowledging that his ruling runs contrary to “popular will.” He added: “The doctrine holds that judges with bad intentions, as well as those with good intentions, are immune from suit.”

The fallacy of the slippery slope is that it can always stop at a conceptual ledge.  Or, one can be slave to blind precedent, and just slide, slide, slide.  As immunity has come under scrutiny for prosecutors who engage in affirmative wrongdoing, it appears that the judiciary remains safe in its black-robed cocoon, untouched and untouchable.

While Judge Caputo did what he could in his decision to distinguish between judicial acts and administrative acts, holding that no immunity was conferred for the latter, he missed an enormous opportunity to distinguish between a judicial act, with or without intentions, and the intentional commission of a crime.  They are not coextensive.

Some men steal with ski masks.  Some steal with black robes.  It’s not a question of sartorial choice; both are stealing.  Stealing does not fall within a judge’s job description.

Judge Caputo’s “sliding scale” analogy shows how he’s gone conceptually awry.  Placing children in kiddie prison for a kickback is not on the same scale as choosing to credit the testimony of a police officer despite being contradicted by ten civilian witnesses, seven of whom are priests and one a cardinal.  That’s the low point of the sliding scale, for which immunity remains intact.  Using a courtroom as a criminal enterprise simply because they can puts their conduct on another scale altogether.  There is nothing, absolutely nothing, judicial about what Ciavarella and Conahan did. 

The commission of a crime makes for a perfect bright line test.  The judicial function does not encompass an intentional crime.  Would this threaten judicial independence?  Would this threaten judicial integrity?  Is this the nature of conduct that requires protection?  It’s hard to fathom that any judge could come up with a rationale that compel them to protect a criminal simply because they sit on a bench while engaged in their criminal enterprise.

Worse still, by conferring immunity on these two, Judge Caputo has not merely elevated the protections for judges beyond any legitimate societal interest, but beyond anyone else in government save the President.  There are a lot more judges than presidents, at least at any given time.  Are judges worthy of that level of protection?  Not when they use their office to commit crimes.  There is simply no reason why they need to be endowed with immunity from suit by their victims, any more than any other criminal. 

Curiously, Judge Caputo made little effort to explain the justification for his leap over the conceptual ledge on the slippery slope.  Instead, he relied on the tried and true fallback position of the courts.


“This is, however, about the rule of law,” Caputo wrote. “It is about the rule of law in the face of popular opinion which would seek a finding directly contrary to the result the rule of law dictates.”
The “rule of law” is that judges are immune for acts performed in their judicial capacity.  The rote application of the rule transcends all else, as long as one can conveniently discard the rationale.  Of course, if it wouldn’t offend the rule of law to hold that “judicial capacity” doesn’t cover the use of one’s judicial trappings to commit intentional criminal acts, then we would have a whole new ballgame. 

Judge Caputo’s decision held firm to the rule that no judge can be exposed to civil liability for any act engaged in while wearing the robe.  After all, what would the rule of law mean if judges who committed crimes under the guise of their office were stripped of immunity and held fully accountable?  It must be far more of a problem than I realize.

Maybe I would find this resort to precedent, this elevation of platitude over reason, more convincing if the adherence to the rule of law occasionally worked in favor a defendant who wasn’t a judge.  Maybe.

12 comments on ““Against The Popular Will”

  1. Doug Cornelius

    A horrific decision, but I understand the policy behind it.

    It looks like this is merely a civil suit. I think these scumbags are still subject to criminal liability for falsifying documents and tax evasion.

  2. SHG

    They are still subject to criminal liability, but to call it “merely a civil suit” is to ignore the consequences of their crimes on children.  How do you restore a year to a child’s life?  A year of school, of playing, of dating, of growing, when they instead spent it in juve prison rather than at home planning what to wear for the prom?

    The judges should, and in all likelihood will, go to prison.  But there will still be 6500 children whose lives have been forever altered by these two judges.  This isn’t “merely a civil suit.” 

  3. Jdog

    Err… “merely”?  The civil suit is the only way that I know of — not being a lawyer, and all — for the kids thrown into the local for-profit gulag by the judges getting kickbacks to do that to get some redress of their grievances.  That doesn’t sound “mere” to me.

  4. John R.

    A civil suit is brought by an individual; a criminal prosecution is brought by the government.

    The appellation “merely a civil suit” implies a value judgment that government cases are more important than individual ones.

    There is a very low premium at this point on compensating people who have been wronged. I’m trying to figure out why people feel that way.

    Here’s one thing that probably qualifies as “common sense”, though that shouldn’t persuade Scott: people can suffer all kinds of things and not be compensated because no one is at fault. It’s terrible to get cancer but you can’t sue anyone over it, at least not usually.

    The criminal remedy is morally easier because it appears to eliminate the self interest of the injured party as a factor. Of course this is superficial. In a criminal prosecution, the prosecutor has a personal career interest in a conviction. So does the judge. So do the cops. It isn’t as direct, but it’s certainly a factor.

    The underlying rationale, I think, is a partiality to collectivism. We have more faith in actions which are collectively approved and undertaken than we do in actions that are undertaken “merely” by individuals.

    It’s only my opinion, but I think this is a big problem.

    In any case, an application of “immunity” this extreme is socially dangerous. If there are 6500 wronged parties, and we’re slamming the courthouse door in their faces, it wouldn’t be at all surprising that one or more of them might get the idea that redress can only be had less formally, and there isn’t any immunity from that.

  5. a3

    “If there are 6500 wronged parties, and we’re slamming the courthouse door in their faces, it wouldn’t be at all surprising that one or more of them might get the idea that redress can only be had less formally, and there isn’t any immunity from that.”

    This is exactly what came to my mind. Scary.

  6. Doug Cornelius

    My apologies. “Merely” was a poor choice when applied to the imprisoned children.

    My intent was for “merely” to apply to the punishment to the judge. It would be better that he lost all his money and got thrown in jail. But at least he should still go to jail.

    Obviously, the lack of a civil suit leaves less recourse for the jailed children, the victims of this vile abuser of the legal system.

  7. SHG

    Comments sometimes lend themselves to inadvertant word usage.  I didn’t think your intent was to trivialize the suffering of the children at the hands of these scum.

  8. adolphus

    I am not a lawyer, so maybe this is a simplistic question. And while aware of this case, I am not completely conversant in all the nooks and crannies, so please excuse me if these questions have been answered elsewhere.

    While I absolutely agree with the sentiment that extra-judicial crimes, even when committed on the bench, should not give a judge immunity and agree that these two judges should not get immunity in this specific case, they aren’t the only ones who can be taken to civil court by the 6500 kids and their families are they? What about the other parties in this crime? The for profit jail company who provided the kickbacks? The supervising government authority (city or state) that had responsibility not only for the prison contract but also supervising the judges?

    Truth be told, if these two judges did not have immunity, how much compensation could these 6500 wronged parties really get for their suffering from them, especially if they are in jail?

    Again, I agree with the conclusion of this entry in regard to the general idea of immunity, but these kids would have had to go after the company or the government for any genuine compensation in any event, no?

  9. Peter Ramins

    So a sitting judge can accept cash payments from either side for a certain verdict, or a favorable judgement on a ruling, or what-have-you?

    And it’s covered by immunity?

  10. Michael Chaney

    I’ve said essentially the same thing over at the Agitator as well as my FB page. I have no problem with governmental officials (prosecutors, police officers, judges, etc.) being given immunity for acts that the honestly committed while performing their duties. Sometimes mistakes will be made. But it’s never a judge’s duty to collect money from a private prison for sending them cases, hence no immunity.

    I’d like to think it’s that simple, but we see time and again where a police officer will commit a blatantly illegal act on film and get away with it, often citing immunity. Nifong will likely make immunity claims, too, when he’s finally sued.

    Other thoughts:

    1. I am appalled by the whole clueless “rule of law” spiel from Caputo. Doesn’t take much to be a judge, eh? In this particular case, the offenders were using “arbitrary rule”, which is the opposite of “rule of law”. Interesting paradox to use rule of law to destroy itself.

    2. Taking Caputo’s logic to an extreme, if a judge decides to pull out a gun and shoot me while I’m in his courtroom, can I sue him? I mean, he’s completely immune, right? I hate to argue from the extremity, but clearly there is some line that even a clown like Caputo would recognize. For those of us with a little more wisdom, it’s clear that line is pretty far on the other side of “running a criminal enterprise from the bench”. That there would even be any argument of this fact shows that we’ve still a long way to come to truly have a government of the people.

  11. rodneyshields

    sorry what a crock.. I hate to break it to you people but soverign immunity in this country is a non-starter….last time i looked we didn’t have a soverign. Sorry if it’s a crime it’s a crime…doesnt’ matter WHAT job you have. I have yet to see ANY job description that REQUIRES you to BREAK THE LAW outside of some CIA rules for field agents! LOL.

  12. SHG

    While it’s unclear who you are “breaking” anything to, since you agree with pretty much everyone else here, you should be aware that “sovereign immunity” is a concept of governmental immunity that goes back to the days of English rule. It doesn’t require an actual king.

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