South Dakota, home of the most draconian anti-abortion law in the country, has a great new measure on the ballot for the voters to consider: an amendment to the state's constitution, which would let people sue judges and jurors for the decisions they make in court. To be fair to the people of South Dakota, pretty much every organized group is against this. But some background is in order here.
Officially the Judicial Accountability Initiative Law, and colloquially called JAIL 4 Judges, this started in California, with one Ron Branson. It seems that Mr Branson, whose smiling face can be seen on the J4J home page, tried to get this on the California ballot but couldn't muster the 700,000 signatures needed. South Dakota had an easier process, requiring fewer signatures, so he went there. But don't worry: they're working on introducing it to other states, so it'll probably stain your state too, eventually.
We should first note what NPR's Nina Totenberg reminds us:
Judicial immunity dates back to before the US constitution, and is meant to insulate judges and others from being punished for making unpopular decisions.Note the word "unpopular" there. There are checks and procedures already in place for dealing with wrong decisions. But we'll get back to that later. Retired Supreme Court Justice Sandra Day O'Connor says this about JAIL:
The attempt in South Dakota to strip judges of their immunity is quite simply an attempt to intimidate judges.
And not just judges, but jurors as well. Many people are already reluctant to serve on juries. Imagine how we'd worry if we thought that the defendant might sue us, and collect damages for a decision he didn't like.
The measure's supporters see it differently, of course. William Stegmeier, who's leading the push in South Dakota, says:
We're not trying to destroy the court system, we're just trying to make judges accountable. Just like everybody else in society is accountable to somebody.
OK, then, how does this accountability work? A "special grand jury" would be created, comprising 13 randomly chosen people. 2% of the salaries of the judges would be used to fund this grand jury, and it's specifically forbidden for any "lawyer, public official, or law-enforcement person" — that is, anyone trained in the law — to be on it. Anyone who objects to how his case was handled in court could file a complaint with this special grand jury, and the jury's task is to weigh the complaint "liberally in favour of the complainant". If the jury, which is by definition predisposed to favour the plaintiff, says "yea", the judge or jury may now be sued for damages, their immunity stripped. The special grand jury can also choose to prosecute the official. Of course, this jury would itself be immune to its own process — evidence that immunity from prosecution is needed in the judicial process.
The problems with this proposal are endless. First, it's a system that's doomed to collapse under its own weight: even without a concerted denial-of-service attack against it, it's likely to get a flood of complaints filed, since there seems no reason that someone given a stiff sentence shouldn't complain.
Then there's the intimidation issue, which Justice O'Connor cites. The built-in bias toward granting the plaintiff's request puts judges and juries in a position of real worry, not about handing down a wrong decision, but simply about handing down a strict one. If you really think the defendant is guilty and deserves a 25-year sentence, you might be apt to go for a lighter sentence to avoid the risk of a lawsuit.
The fact that the special grand jury comprises random people, and specifically forbids anyone with a legal background means that these decisions will be made by people using their "guts" rather than by real consideration of the law and legal procedures. Someone who simply says, "I don't think robbery should ever get more than a five-year sentence can bring us 14% of the way toward making that happen, despite any laws that were enacted by elected legislators.
And we already have plenty of accountability. Judges in many states — including South Dakota — are elected, and must stand for re-election. There are processes already for impeachment of judges who abuse their positions. Under certain conditions, judges may modify or vacate the decisions of juries, or declare mistrials, thereby putting a check on errors by the jury. We have an appeals process, at both the state and federal level, which has other panels of judges — people trained in the law and experienced in these matters — review the decisions of the lower courts.
But the conspiracy-theorists who are pushing JAIL say things like this:
If we lose, it's because of all these special interests, and the lawyers, colluded to defeat us.Well, no: If you lose, it's because your proposal is a bad one, and people can see that. You don't get to set it up so that even losing proves your point.
Our system, without JAIL, is hardly one that allows one person with an ax to grind to lock someone away for life. Make no mistake: this proposition is dangerous, and it must be stopped, in South Dakota and everywhere else it's brought forth.
 The anti-abortion law is also up for referendum on November 7th, and is apparently on shaky ground, yay!
Update, 2 Nov: Here's a New York Times editorial on the matter.