Can Judicial Compassion Be Unethical?  Justice Speaks Podcast

Veterans’ Treatment Courts

Two months ago something happened that has been bothering me ever since. A judge in North Carolina sentenced a man to 24 hours in jail then joined him in the cell for the night. District Court Judge Lou Olivera is a veteran of the Gulf War and presides over a Veterans’ Treatment Court. An explanation of Vets’ Courts may be found at here.  Vets’ courts are the latest iteration of drug courts where the treatment and recovery of the criminal defendant (most often called the “participant”) is the focus of the court, not the adjudication of facts. After entry of a guilty plea the court coordinator and mental health/substance abuse treatment providers develop a treatment plan with the assistance of a Veterans’ Justice Outreach (JVO) Specialist who is employed by the Veterans Administration. Through a series of progress reports in front of the judge, the participant’s progress is closely monitored. When doing well, a participant is rewarded; when not doing well, the participant is sanctioned. There may also be treatment adjustments from time to time.

Incidence of PTSD

In this particular case Sgt. Joseph Serna had appeared in front of Judge Olivera 25 times for progress reports. On the day of this particular incident, Serna admitted he lied about a recent urine test. The former Green Beret suffers from severe Post Traumatic Stress Disorder (PTSD), a common affliction among combat veterans. Previously ignored by the service, the Veterans Administration now has a National Center for PTSD.  Among veterans, PTSD and Traumatic Brain Injury (TBI) is found in almost 20% of the population compared to 3.6% of men and 9.7% of women in the general population.

Sentence of 24 hours in jail

Although Judge Olivera had a variety of choices when imposing sanctions for lying about the urine test, he chose to sentence Serna to jail time.  The judge himself drove Serna to jail and noticed he was responding negatively. According to news reports, the judge said, “When Joe first came to turn himself in, he was trembling. I decided that I’d spend the night serving with him.”

The participant saw it this way: “He is a judge, but that night, he was my battle buddy,” Serna says. “He knew what I was going through. As a warrior, he connected.”

At the end of the one-day sentence, the judge drove Serna home after stopping to buy donuts for Serna’s family.

Ethical issues involved

There is no doubt that this was an incredible and compassionate thing to do but it raises so many questions.

1. Why did the judge choose a custodial sentence when he could have assigned volunteer work, writing an essay about honesty, stepped up counseling or drug tests or any variety of other sanctions? One of the beauties of treatment courts is being able to individually craft both positive and negative responses to participant behavior.
2. Was it appropriate to drive the participant to jail? The American Bar Association Model Code of Judicial Conduct requires a judge to “uphold and promote the, independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety” (Canon 1).  Could someone, knowing the facts, question the independence and impartiality of the judge?
3. Canon 2, among other things, prohibits a judge from having ex parte communication. No defense attorney nor prosecutor was present at the jail. No court reporter was on hand to make a record. The conversation was personal according to Serna. What did they talk about? How might the judge use this information in the future? Was something said that would be of interest to the attorneys?
4. The Preamble of the Canons says, “[Judges] should aspire at all times to conduct that ensures the greatest possible public confidence in their independence, impartiality, integrity, and competence.” Does Judge Olivera’s conduct raise any questions in this regard?

Judge Olivera sounds like an amazing man who has served his country well. Sgt. Serna has certainly been affected negatively by his service and he is a hero with three Purple Hearts. But what bothers me is no one has commented on the propriety of what the judge did. It was the humane thing to do but was it the ethical thing to do?

What do you think?