Liberally Speaking (10/15/09)

Confronting judicial uncertainties

Oct. 15, 2009

Our justice system is one of the best in the world. It exemplifies many of our basic beliefs: That one is innocent until proved guilty, the importance of due process, the concept of equal justice.

As with any human institution, our justice system is not perfect. Over time, a long series of Supreme Court decisions have ensured that our principles are applied.

One of the most famous, 1966’s Miranda v. Arizona, is the source of the Miranda Warning, which begins, “You have the right to remain silent ….” The decision in this case ensures that suspects are at least aware of their rights when they talk to police. Whether the suspects take the advice the Miranda Warning gives them is another story entirely.

Another famous case is 1963’s Gideon v. Wainwright, immortalized in the book “Gideon’s Trumpet” and the TV movie of the same name. This case ensured that all criminal defendants, even those not accused of a capital crime, must be provided a lawyer. One of my earliest memories of our justice system is watching Peter Fonda, playing Clarence Gideon, writing a motion to the Supreme Court by hand.

These cases, both decided before I was even born, stay with us today. They are applied in interrogation rooms and courtrooms on a daily basis. The police and prosecutors constantly push the boundaries of these and other important decisions, and the courts are constantly refining those boundaries for the next set of cases.

But even with all these defined boundaries, these legal limits, there are still times when we have to take serious looks at our system. The mere fact that the law and the processes to apply the law need refinement shows that what we have is not yet perfect.

As I watch and read news stories about national and local court cases, I grapple with these conflicts constantly. I’ll take two examples to show what I mean.

First is the grand and divisive issue of the death penalty. Vermont, among other states, has decided that the death penalty is not a punishment we want to use. As we’ve seen in many cases, famous and infamous, those on death row can be placed there in error. The problem with the death penalty is its finality. Once the punishment is meted out, there is no going back.

Because we can, and do, err, my sense of justice tells me that the death penalty is unjust. But at the same time, my sense of justice tells me that in cases like those of now-executed Ted Bundy and Timothy McVeigh, justice was served in a way no other penalty could have satisfied. I struggle with this dichotomy in my own principles.

The second example involves another basic tenet of our criminal justice system: That after a convicted criminal does his time, he is then released back into society, and that’s the end of it. It would be the height of unfairness, of injustice, to impose a higher penalty after someone has served his time or at any time after sentencing.

This, however, seems to be exactly what we do when we put convicted sex offenders on a list for the rest of their lives, and track them, publicly, after they are released. My senses are piqued when I hear about this, because it seems unfair, unjust. But at the same time, as a father, as a neighbor, as a member of the community, this is information I feel the need to know and the right to have.

Questions of fairness, of justice, can be hard to answer. The right thing to do can seem obvious in the abstract, but once you hear the details, see the effects on real people, imagine how you would react as you sat in a jury or if you or a friend or family member were a victim of a crime with similar circumstances, the obvious can be less so.

Fortunately, most of the time, these nagging issues do not become a part of an individual criminal case. Be it embezzlement, drunk driving, stalking, sexual assault, burglary or murder, most of the details of the case are not cast into constitutional waters. When they are, however, we can be assured that those arguing the case, on both sides, are looking out for all of our best interests — both the interests of the public and the interests of the individual.


Steve Mount has been a Williston resident since 1996. He is a software engineer at GE Healthcare and is devoted to his family, his country and his Constitution. You can reach Steve at or read his blog at