Degrading stereotypes

In a recent case, based on a stipulation and agreement, a judge was publicly admonished for comments implying that a defendant might be raped in prison. In re Amato, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct June 24, 2022). The judge also agreed to participate in training focused on appropriate courtroom demeanor.

On August 10, 2021, the judge presided over the arraignment of a defendant charged with misdemeanor assault (domestic violence) and resisting arrest. Addressing the defendant prior to announcing the conditions on his release, the judge pointed out that his conduct occurred while he was on probation for other matters. The judge then told the defendant:

You’re setting yourself up, sir, to be Bubba’s new best girlfriend at the state penitentiary. I hope you realize that. That may hopefully give you a graphic image to think about. . . . And if you think I’m kidding, I’m not.

After the defendant indicated that he understood, the judge continued:

The folks at the penitentiary have mothers and sisters and nieces and cousins that they do not want someone out there abusing. And they will take that out on you, at the penitentiary. So think about that because you’re racking up felonies at this point.

In response to the statement of allegations, the judge assured the Commission that her comments, “while insensitive and thoughtless, were not motivated by bias or ill-will toward the defendant” but were “‘an attempt to communicate to [the defendant] in what were commonly understood terms that would have an impression upon [him] to change his behavior.”

Concluding that the judge’s comments detracted from the dignity of judicial office, the Commission emphasized that the judge could have communicated “the seriousness of the charges and their potential consequences . . . without implying that a defendant may be raped in prison if he continued his unlawful behavior.” It stated:

The words and images chosen were improper, discourteous, and unbecoming a judicial officer. They were degrading to both the defendant and other incarcerated people, playing on stereotypes, and exploiting fears of the criminal justice system. While Respondent’s intentions may have been to inspire law-abiding behavior through fear, the language used here is inappropriate in any court proceeding and is particularly inappropriate in an arraignment proceeding where the defendant is presumed innocent.

The Commission noted that the judge was conscious that “her unfortunate choice of language” could be perceived as a manifestation of bias and had committed to be more cautious in the future.

This is not the first case in which a judge has been sanctioned for comments to defendants about the possibility of violence in prison.

  • After noting that a defendant was smiling, a judge remarked that “they might like your smile in jail,” to which the audience responded with a loud “oooo” and laughter. Inquiry Concerning Salcido (California Commission on Judicial Performance November 10, 2010) (censure for this and other misconduct).
  • • While incarcerating a slightly built white male, the judge asked him if he “knew what they do to skinny little white boys in jail,” or words to that effect. Inquiry Concerning Shaw, Decision and order (California Commission on Judicial Performance June 26, 2000) (admonishment for this and other misconduct).
  • • A judge said to a criminal defendant, “If you get busted for this again, I’ll tell you how amusing you won’t find it. Unless you like those young boys at the jail. I understand they can be very friendly to young boys like you.” In re Popovich, Public reprimand (Kentucky Commission on Judicial Conduct July 7, 2016); notice of formal proceedings and charges.
  • • A judge told a defendant convicted of child abuse, “I hope this follows you to prison.” In the Matter of Smith, Stipulation and order (Nevada Commission on Judicial Discipline July 27, 2018) (censure for this and other misconduct).
  • • During sentencing, a judges said: “[I will] cast [the defendant] down among the [S]odomites . . . in state prison.” In re Tranquilli, Order (Pennsylvania Court of Judicial Discipline November 19, 2020) (ordering permanent resignation for this and other misconduct).

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