Why Being a Judge Is Hard

First, since today is Good Friday, let me apoloize upfront for the disturbing nature of the case around which this post is built.  Unfortunately, it serves as a compelling follow-up to the enjoyable and (I hope) interesting discussion Will and I posted yesterday, and to the issue of judicial activism more generally. 

Over at Volokh, Prof. Kerr describes a case now pending before the Third Circuit and poses the question as to how much and whether simple human compassion should play a role in judicial decisionmaking.  Kerr summarizes the case thusly:

Pierre is from Haiti, and he was living lawfully in the U.S. as a permanent legal resident. Pierre is deeply troubled and has very violent tendencies, however. One night, he broke into the home of his ex-girlfriend and attempted to kill her. When a neighbor interrupted the attack, Pierre attempted to commit suicide by drinking a container of battery acid. His suicide attempt was unsuccessful, however: He lived, but his ingestion of the battery acid destroyed his ability to eat or drink normally. Pierre can survive only by receiving constant medical attetnion: He must be fed a liquid diet administered through a feeding tube.

  Pierre was convicted of attempted murder and served the mandatory 10 years of his 20-year sentence in a U.S. prison, where he received the medical care needed to keep him alive. After the mandatory 10 year sentence was up, the INS concluded that it was going to deport Pierre for having committed an aggravated felony.

  If Pierre is deported back to Haiti, he will be detained indefinitely in a Haitian prison. Haitian prisons are brutal. In particular, there are no medical facilities to feed Pierre and keep him alive. Haitian prisons just can’t provide Pierre with the medical care he needs. If Pierre is sent back to Haiti, he will almost certainly die of starvation in prison in a matter of days or at most weeks.

  Now let’s turn to the law. The only power a court has to stop the INS from removing Pierre in such circumstances is under the Convention Against Torture, as enacted into federal law by Pub. L. No. 105-227. Under the Convention Against Torture, courts must intervene in the removal if the individual can show that he is more likely than not to be tortured if sent to the proposed country of removal. Pierre’s argument is that the failure of Haitian authorities to provide him with adequate medical attention will be tantamount to torture — he will slowly and painfully starve to death — and therefore the court must block his removal.

Kerr then quotes what he says is apparently the only regulation at issue in the case.  So far as I can tell, the only conceivable interpretation of the regulation is that the court may bar deportation only if it finds that Haitian officials will more likely than not have the specific intent of killing Pierre as punishment for his past crimes.  Unless there are substantially more facts to this than Kerr has described, such a finding is almost impossible because Pierre’s death will almost certainly be a simple result of the fact that Haiti lacks the resources to provide the care necessary to keep him alive, not because Haiti wants to execute him as punishment. 

Surely, under these facts, you could not say that the drafters of the Convention against Torture intended that the INS be permitted to deport Pierre.  Since they were human, it’s probably even safe to say that the people who drafted the deportation statute didn’t intend for someone in Pierre’s situation to get deported.  The problem is that the rules did not appear to contemplate such an instance, and thus failed to create an exception to it. 

Moreover, under these facts, it’s safe to say that the “popular” decision would be to permit Pierre to remain incarcerated in the US for another 10 years, at the very least.  Yet the almost-certainly correct decision in this case is to permit Pierre’s deportation, with the full knowledge that it will amount to a rapid death sentence after he has already become eligible for parole. 

Obviously, the “activist” decision here is to do the “popular” and “moral” thing and read into the statute an unprecedented meaning for the word “intentionally.”  The textually – and, I believe, legally – correct decision is to permit the deportation, even though it is a death sentence far more rapid than Pierre would have gotten had he committed capital murder in just about any state outside of Texas.  If the Court chooses the former approach, though, how many people could blame them?  I couldn’t – even though I firmly think that it should and will take the latter approach.

The thing is, these are the cases that you rarely hear about, but which judges have to deal with far more often than controversial social issues.  Presidents,governors, and legislators get to make policy in a bubble where they can pick and choose the facts they listen to, the people they encounter, and the voters to whom they pander.  They do not have to deal with the effects of the policies they set forth, at least not unless they want to.  Judges, however, have to deal with the effects of those policies every day, and have remarkably few tools to change those effects.  Yet it is they who are called “tyrants” who have an agenda to “usurp the will of the people.”