If the old fairy tale character Goldilocks were a candidate for political office, it’s fair to assume she’d be considered moderate. Of course, she’d be criticized on social media by her opponents for her high maintenance attitude and skewered in the press for her penchant for trespassing on other people’s property, but that’s not to say that she doesn’t have some redeeming qualities.
Her quest to find the comfortable medium between too hot and too cold, and too hard and too soft, is one that is worthy of some emulation.
The recent slate of executions in Arkansas (Which I refuse to call a “rush” given that they’d been on an indefinite hold for decades.) were contentious, and gained national attention as Arkansas became ground zero for the ongoing debate over the use of capital punishment in our criminal justice system. However, actions by some members of the Arkansas judiciary – one too hot and a few too cold – ignited even more controversy over judicial free speech and accountability to the public in our judicial system.
Pulaski County Circuit Judge Wendell Griffen has a history of testing the boundaries of judicial free speech, by speaking his mind in the press and sharing his thoughts on his blog. He’s shared strongly worded views on topics ranging from the Israel-Palestinian conflict to police involved shootings across the country. More recently, Griffen referred to certain supporters of the May 9th Little Rock millage campaign as “white supremacists” looking to “advance their tyranny” on the school district. Of course, one’s right to free speech under our Constitution in most cases cannot and should not be conditioned on the content of that speech, and as an individual, Judge Griffen is entitled to speak his mind.
However, Judge Griffen’s actions on April 14, strapping himself to a cot in front of the Governor’s mansion to protest the very executions that he had just hours before ruled from the bench should be halted immediately, raised questions about the impartiality of his previous ruling as well as potential future rulings involving the death penalty.
Judges are bound by the Arkansas Code of Judicial Conduct, which require a judge to “act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.” Note that impropriety itself is not the measuring stick for conduct, but rather the appearance of impropriety, because the appearance alone could be enough to erode confidence among the citizenry in the fairness and impartiality of our state’s judicial branch.
As a result, several members of the Arkansas General Assembly, chief among them Sen. Trent Garner, publicly called for impeachment hearings to be conducted, and the Arkansas Supreme Court subsequently removed Judge Griffen from current and future death penalty cases, ordering a review of his actions by the Judicial Discipline & Disability Commission (JDDC).
Judge Griffen is entitled to a fair hearing to present his case before the JDDC, but members of the legislature will undoubtedly be watching those proceedings closely as they consider whether further action is warranted. Notably the House of Representatives, which according to the State Constitution has the “sole power of impeachment,” recently modified its rules to establish a clear impeachment process, the lack of which was brought to light when calls for impeachment were first made. This action does not necessarily indicate that proceedings will occur, only that if they ever were to occur in this situation or any other there now exists a process by which they can.
Yet while Judge Griffen got the lion’s share of local and national headlines, he was not alone among those in the judicial branch that drew criticism. For if his actions were, in Goldilocks’ terms “too hot,” I would argue that the majority forged in several recent Arkansas Supreme Court rulings were the opposite.
When the Arkansas Supreme Court instituted stays of executions in several of the scheduled executions, the minority trio of Justices Baker, Wood, and Womack made their opposition to the stays clear via dissenting opinion. Justice Womack offered a blistering dissent, joined by Justice Wood, in which he argued that the majority chose to “ignore our responsibility and refuse to perform our duty.”
Noticeably absent was a full majority opinion by the four justices who ruled in favor of the stay, and accordingly a justification to the public and the families of the victims, of their rationale for ordering it.
Gov. Asa Hutchinson, in his statement following the stay of execution of Stacy Johnson, pointed to the absence of a majority opinion stating, “The minority opinion was clear in its dissent, but I know the families of the victims are anxious for a clear-cut explanation from the majority as to how they came to this conclusion and how there appears to be no end to the court’s review.”
The Arkansas Supreme Court is under no obligation to explain itself, however given the heightened level of attention on the execution issue their lack of an explanation certainly added fuel to controversy of their decision and surely played a role in the unprecedented distribution of the Chief Justice’s cell phone number on social media by members of the Arkansas General Assembly.
Just because you can say it doesn’t mean you should; and just because you don’t have to say it doesn’t mean you shouldn’t. There are plenty of factual arguments that can be made on both sides of the rulings made by Judge Griffen and the Supreme Court majority in these cases, and many of us will disagree about their decisions.
But public confidence in the judicial branch is built as much on the tenants of fairness and impartiality as it is on transparency and trust, with all being necessary to assure voters that our system is “just right.”
Editor’s note: Robert Coon is a partner with Impact Management Group, a government relations and communications firm. Opinions, commentary and other essays posted in this space are wholly the view of the author(s). They may not represent the opinion of the owners of Talk Business & Politics.