About 20 years ago my friend Tim and I spent a couple of privileged hours on one of those sunny late spring afternoons at lunch with Judge Tom Stewart in the dining room of his beautiful home on Calhoun Avenue. The same home he lived in from his birth to his passing in 2007 at age 88. Judge Stewart made the three of us sandwiches (ham, I believe) and he was the delightful, welcoming, affable host.
We had asked for a brief opportunity to talk about his experiences as the Secretary of the Alaska Constitutional Convention and his service with the Army’s 10th Mountain Division in World War II. He was awarded both the Silver and Bronze stars. It seemed miraculous to me that we would actually get to meet and speak with the man now referred to as the “Ben Franklin of Alaska” (the words of former Alaska Supreme Court Justice Bud Carpeneti).
Not so miraculous really, because Judge Stewart to his core was an Alaskan. He guided the draft of the Alaska Constitution, later served in the Alaska Senate and was always a valued advisor to governors of any political affiliation.
“His vision left Alaska with a constitution praised by scholars, especially its Judiciary Article, which calls for judges to be appointed based on merit but retained based on voter preferences,” said Supreme Court Justice Warren Matthews.
This was a revolutionary concept. In most states, judgeship is a partisan office regularly offered in the political marketplace alongside County Sheriff, Assessor and School Superintendent. The Alaska Constitution insulates judges from the politically powerful. We Alaskans are quick to note that “we don’t care how they do it down below.” I sometimes wonder if we really appreciate how deep and fundamental is that conviction.
Our Alaska Constitution is just 30 some pages (contrasted with hundreds or a thousand or more pages in other states) and has been described as more of a song of democracy than a compilation legal codices. It is a document recognized worldwide as a modern guide for citizen rule.
After fascinating, inspiring, and often humorous commentary, “… Why did the Army send the Arizona National Guard to fight in the Aleutians and the Mountain Division to fight in Italy?” the judge steered the conversation to a more contemporary, and to him, disturbing topic. At this time in the 1990s, the Alaska Legislature, like similar bodies throughout the country, was debating “Three Strikes, You’re Out” and other mandatory and presumptive sentencing changes to criminal code.
Here was a humble man who had accomplished momentous things, yet who always considered himself first and foremost an officer of the court, a judge. He explained that his greatest responsibility and most important duty came at the moment he looked a convicted defendant in the eye and pronounced sentence. The judge believed that the purpose of the criminal justice system is to protect the people, bring closure to the victim, and to offer the possibility of reform and redemption to the offender. He felt the weight of each decision, knowing that victim and defendant alike were individuals whose path through life would be profoundly affected by the sentence handed down. He knew that the consequences of that sentence would reach far beyond those individuals — to family, friends and into the future.
Precisely because the criminal justice system is a piece of the social mechanism that proscribes our rights and responsibilities, it cannot be reduced to a mathematical formula. Every sentence must be arrived at through careful deliberation, considering each element of a unique case. There is no “one size fits all.” Justice requires that the deliberation be the responsibility of an informed citizen jury of our peers, guided and brought to closure by good wise men like Judge Tom Stewart.
Judge Stewart defended judicial discretion not as a legal principle but as a social prerequisite. “We are family. We cannot be at war with each other,” were his words to us that afternoon.
We are family. It is not easy. It is not simple. We cannot let fear and a thirst for punishment and revenge blind us. “If we demand an eye for an eye, soon the whole world will be blind,” Gandhi said.
What we should fear is a complacent, disengaged society that believes it can administer justice through mandatory and presumptive sentencing formulas or computer algorithms.
What we should fear is exactly what we have … the one nation in the world (with the possible exception of North Korea) with the highest percentage of its citizens behind bars.
• Dan Austin is the General Manager of the St. Vincent de Paul Society of Juneau. He served the Knowles Administration as Budget Analyst for the Departments of Law, Courts, Corrections and Public Safety.
