The Role of Compassion in Judicial Decisionmaking:
Public debates on the proper role of the courts often focus on the tension between two competing visions: Some people think judges should adopt a narrow role heavily constrained by precedent and text, and some people think judges should feel more free to make rules and decisions in light of the equities of the situation.

  I was thinking of that tension when I read an en banc decision of the Third Circuit from last summer, Pierre v. Attorney General. I'm going to describe the basic facts and legal standard of this very disturbing case, and then have a reader poll on how you would vote if you were a judge.

  Here are the tragic facts. Pierre is from Haiti, and he was living lawfully in the U.S. as a permanent legal resident. Pierre is deeply troubled and has very violent tendencies, however. One night, he broke into the home of his ex-girlfriend and attempted to kill her. When a neighbor interrupted the attack, Pierre attempted to commit suicide by drinking a container of battery acid. His suicide attempt was unsuccessful, however: He lived, but his ingestion of the battery acid destroyed his ability to eat or drink normally. Pierre can survive only by receiving constant medical attetnion: He must be fed a liquid diet administered through a feeding tube.

  Pierre was convicted of attempted murder and served the mandatory 10 years of his 20-year sentence in a U.S. prison, where he received the medical care needed to keep him alive. After the mandatory 10 year sentence was up, the INS concluded that it was going to deport Pierre for having committed an aggravated felony.

  If Pierre is deported back to Haiti, he will be detained indefinitely in a Haitian prison. Haitian prisons are brutal. In particular, there are no medical facilities to feed Pierre and keep him alive. Haitian prisons just can't provide Pierre with the medical care he needs. If Pierre is sent back to Haiti, he will almost certainly die of starvation in prison in a matter of days or at most weeks.

  Now let's turn to the law. The only power a court has to stop the INS from removing Pierre in such circumstances is under the Convention Against Torture, as enacted into federal law by Pub. L. No. 105-227. Under the Convention Against Torture, courts must intervene in the removal if the individual can show that he is more likely than not to be tortured if sent to the proposed country of removal. Pierre's argument is that the failure of Haitian authorities to provide him with adequate medical attention will be tantamount to torture — he will slowly and painfully starve to death — and therefore the court must block his removal.

   The relevant regulation, 8 C.F.R. ยง 208.18(a)(1), limits torture to that which is
intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
  Now imagine you are a judge forced to decide Pierre's fate. Do you vote that Pierre must be sent to Haiti where he will die in a matter of days because the regulation clearly limits torture to conduct "intentionally inflicted," and the suffering that Pierre describes would not be intentionally inflicted? Or do you you vote that Pierre can stay in the United States, because the statute and regulation should be read to include the horrific reality of what will happen to him as tantamount to torture? To add another wrinkle to this, the options will also ask you to categorize your general public policy preferences — as right-of-center, left-of-center, or "other." Here's the poll:

You are a judge who must vote in Pierre's case. Do you vote to allow Pierre's removal from the United States, or must he be allowed to stay in the United States?
I vote to allow the removal. My politics are right-of-center.
I vote to allow the removal. My politics are left-of-center.
I vote to allow the removal. My politics are "other."
I vote he must be allowed to stay here. My politics are right-of-center.
I vote he must be allowed to stay here. My politics are left-of-center.
I vote he must be allowed to stay here. My politics are "other'."
Free polls from