Montana\u2019s junior U.S. Senator, Tim Sheehy, wants to expand federal law to allow victims of crimes to sue judges if they are harmed by someone accused or previously convicted of a violent crime while awaiting trail.<\/p>\n
Sheehy introduced the Judicial Accountability for Irresponsible Leniency, or JAIL Act in November. Since then, U.S. Sen. Marsha Blackburn, a Republican from Tennessee, is the only other Senate member to cosponsor the legislation. Currently, the bill is waiting for a hearing in the Senate Judiciary Committee.<\/p>\n
However, the bill adds to a growing number of ideas, both on the state and federal level, that GOP lawmakers have to reshape the judiciary.<\/p>\n
Sheehy, a Republican, said the bill would push back against \u201cradical judges in far-left jurisdictions (who) prioritize soft sentencing for criminals over common-sense and public safety,\u201d according to a press release from his office.<\/p>\n
The JAIL Act, would essentially allow a crime victim (or one of their family members if that person is dead) to sue the judge or the institutions that release \u201cviolent people.\u201d The short, page-and-a-half bill would include anyone who was charged with a crime of violence or previously convicted crime of violence, while on bail. Sheehy, in materials released by his office about the bill, said his basis for the bill was the murder of a North Carolina resident who was killed by a man who had been released on bail numerous times and had a lengthy criminal record.<\/p>\n
\u201cIn an eight-year study, the United States Sentencing Commission explains that nearly two-thirds of violent offenders released in 2010 were rearrested and (sic) the same rate for violent offenders released in 2005,\u201d Sheehy\u2019s office said, citing to the 2022 report.<\/p>\n
\u201cThanks to soft-on-crime policies, judges have neglected justice served to the fullest extent of the law, putting public safety at risk, and instead prioritizing criminals over law-abiding Americans,\u201d said Sheehy in a description of the legislation.<\/p>\n
Also, it would prohibit a longstanding principle of judicial immunity from being used as a defense for a judge. The section would not only apply to federal judges, but also state judges.<\/p>\n
A constitutional law professor at the University of Montana, though, said from a legal perspective, the proposed bill has several serious hurdles. One of those is judicial immunity. Another factor is the principle of federalism, which generally allows state courts to operate independently of federal oversight. Sheehy\u2019s proposed legislation also raises issues with the principle of bail, a right that citizens have in most cases to post a bond in order to avoid being detained in jail during the legal process.<\/p>\n
\u201cThis legislation is very unlikely for a number of reasons,\u201d said Constance Van Kley, an assistant professor at the University of Montana\u2019s Alexander Blewett III School of Law.<\/p>\n
Foremost, the law would seem to run afoul of the bedrock judicial principle of federalism, which holds that unless the Constitution has outlined certain powers to the federal government, and the rest are retained by the states. In this case, federal courts are often \u201ccourts of limited jurisdiction,\u201d meaning that they settle only certain types of disputes. In many settings, crime is prosecuted at the state level. Sheehy\u2019s JAIL Act potentially forces rules on state courts and judges.<\/p>\n
\u201cTelling states how to operate is a classic violation of federalism,\u201d Van Kley said.<\/p>\n
She said case law generating from Montana has helped shape this principle, including a case from Ravalli County, which challenged a portion of the \u201cBrady Bill\u201d that required state officers to conduct background checks. Jay Printz, the Sheriff and Coroner of Ravalli County challenged Congress\u2019 mandates that chief legal officers in every jurisdiction comply with federal background gun checks.<\/p>\n
In the 1997 decision, then-Justice Antonin Scalia wrote for the majority of a split United States Supreme Court that Congress couldn\u2019t offload its power to chief law enforcement officers around the country. Scalia\u2019s decision delved deeply into the Constitution\u2019s history showing that states have frequently resisted duties that Congress tried to push to them.<\/p>\n
\u201cNot only do the enactments of the early Congresses, as far as we are aware, contain no evidence of an assumption that the federal government may command the states\u2019 executive power in the absence of a particularized constitutional authorization, they contain some indication of precisely the opposite assumption,\u201d Scalia wrote, agreeing the federal government could not force state law enforcement officers to conduct a federal background check.<\/p>\n
Using the same principle, Van Kley said it\u2019s easy to see that Congress cannot tell state legislators and state courts how to do their job.<\/p>\n
Judicial immunity and sovereignty\u00a0 <\/p>\n
Even though Sheehy\u2019s bill, if passed, would not allow judges to claim judicial immunity, Van Kley points out it\u2019s not just a matter of putting that into a bill. Instead, judicial immunity has its origins in the U.S. Constitution.<\/p>\n
Judicial immunity is a legal concept that protects judges from being sued by people who feel harmed by the judge\u2019s actions, whether in civil or criminal court. The principle says that so long as judges are doing a faithful job, even if they make a mistake, they cannot be sued under normal circumstances.<\/p>\n
The Eleventh Amendment to the U.S. Constitution, passed in 1795, clarifies the role of the federal court system, especially as it relates to disputes between people of different states. It reinforces the idea of state court sovereignty.<\/p>\n
Also, because of the long-held principle that federal government must respect the autonomy of state courts, Van Kley said she suspects Sheehy\u2019s JAIL Act would run into more constitutional trouble.<\/p>\n
\u201cCongress can\u2019t just do away with sovereign immunity,\u201d she said.<\/p>\n
The proposed bill also misunderstands the nature of judges, Van Kley said. When a judge \u2014 either at a state or federal level \u2014 holds court, that judge isn\u2019t doing so as an individual, rather as an extension, a sort of representative, for the state.<\/p>\n
A defendant\u2019s rights <\/p>\n
In criminal law, Van Kley said there is an extensive list of rights those accused of a crime possess \u2014 and there\u2019s a reason for that. She said that people who are accused of crimes can be imprisoned and that means a loss of many rights.<\/p>\n
That\u2019s why there are multiple protections for those accused of a crime, including the presumption of innocence, a right to an attorney, and bail. Both the federal government and the states recognize a right to bail so as not to be held without freedoms in prison without due process.<\/p>\n
\u201cA judge has to make a determination about bail, and most states prohibit setting excessive bail,\u201d Van Kley said.<\/p>\n
That also means that judges who set reasonable bail may just be following the law. However, Sheehy\u2019s proposed legislation would make an impossible or illegal decision between following the law which calls for bail, or opening themselves up to personal liability.<\/p>\n
\u201cIf judges can be held liable for getting it wrong, it will have a considerable effect on people caught up in the system,\u201d Van Kley said.<\/p>\n
Some of those effects could be a huge increase in the number of people being incarcerated, fewer people wanting to become judges, and problems with \u201cspeedy trials\u201d being held in courts which often have considerable congestion and backlogs.<\/p>\n
\u201cIf a law like this passes \u2014 even if you believe it is unconstitutional \u2014 you\u2019d still expect it to have an effect on judicial behavior,\u201d Van Kley said.<\/p>\n
Other remedies <\/p>\n
Van Kley said that running to sue a judge may not be the best way of solving problems with the criminal justice system. For example, many states, including Montana, have established victim\u2019s advocates and some have a victim\u2019s fund. Moreover, getting justice for victims is already a challenging process, with trials and the court process playing out for years.<\/p>\n
Other states have adopted different combinations of \u201cVictim\u2019s Bill of Rights\u201d which include notification and restitution.<\/p>\n
\u201cThere are already congested court dockets,\u201d Van Kley said. \u201cIf you sue a judge, someone will likely have to wait a long time.\u201d<\/p>\n