‘But I Ain’t a Judge’: The Therapeutic Jurisprudence Implications of the Use of Non-Judicial Officers in Criminal Justice Cases

29 Pages Posted: 22 Oct 2019

Date Written: October 12, 2019

Abstract

The role of non-judicial officers occupies a hidden space in the US judicial system. Statutorily sanctioned in many jurisdictions, such officers have a wide range of duties and responsibilities, including hearing certain pre-trial motions (e.g., NY CPL § 255.20) and making decisions as to conditions of probation for sex offenders (e.g., SDCL § 23A-27-12.1). In many jurisdictions, these officers are frequently not lawyers, and that there is significant evidence that many of the basic rudiments of the criminal trial process are often not honored.

There has been virtually no consideration of this phenomenon in either the scholarly literature, and absolutely no consideration from the perspective of therapeutic jurisprudence (TJ), Among TJ’s primary focuses is an inquiry into whether legal rules, procedures, and lawyer roles can or should be reshaped to enhance their therapeutic potential while not subordinating due process principles. This clearly does not happen in the systems under discussion here.

Keywords: criminal procedure, therapeutic jurisprudence, non-judicial officers, probation, delegation of powers, sex offenders, separation of powers, role of judges

Suggested Citation

Perlin, Michael L., ‘But I Ain’t a Judge’: The Therapeutic Jurisprudence Implications of the Use of Non-Judicial Officers in Criminal Justice Cases (October 12, 2019). Available at SSRN: https://ssrn.com/abstract=3468764 or http://dx.doi.org/10.2139/ssrn.3468764

Michael L. Perlin (Contact Author)

New York Law School ( email )

185 West Broadway
New York, NY 10013
United States
212-431-2183 (Phone)

HOME PAGE: http://https://www.nyls.edu/faculty/faculty-profiles/emeriti_faculty/

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