Judges, legal scholars, and others in the legal profession are concerned that a big drop in the number of reasonable people in the United States is making it harder for courts to apply the “reasonable person” standard in law.
“The ‘reasonable person’ standard has been a part of the administration of justice throughout history, but today we’re finding it under pressure as we see fewer reasonable people in the United States,” says James Reynolds, professor emeritus of law and jurisprudence at Harvard University and the lead author of a study on the decline of reasonable people in the United States and its impact on the legal profession.
The decline in reasonable people isn’t just limited to the notion of the “everyman,” says Peter Moore, a professor of law at Stanford University. The “reasonable person” standard extends to other standards of reasonableness, including the “reasonable prosecutor” standard. “That means finding a ‘reasonable prosecutor’ is also getting harder than ever, and it’s possible we might have to abandon all reasonable person standards, including the ‘reasonable prosecutor’ standard,” he says.
What that might mean was brought home most recently by remarks of FBI Director James Comey earlier this week, when he laid out his case for not criminally charging presumptive Democratic presidential nominee Hillary Clinton for her use of a private email account when she was secretary of state.
Comey said Clinton had shown poor judgment but that no “reasonable prosecutor” would bring criminal charges for her handling of emails, because there is little precedent for prosecuting her type of case as gross negligence under espionage laws.
“Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case,” he said in his July 5 statement.
Randall Meyes, a former Ohio attorney general who now practices privately, said Comey might have inadvertently opened the door for federal prosecutors to bring charges against Clinton. “If there are no reasonable prosecutors,” he says, “he’s opened the door for unreasonable prosecutors to have a field day with this.”
The lack of reasonable prosecutors is a bigger problem than just what happens to Clinton, says Reynolds. “Yes, Clinton is in trouble if there are no reasonable prosecutors left, but the bigger problem is what will happen in the years ahead as judges and jury members realize they can’t apply the ‘reasonable person’ standard anymore? They’re going to realize justice can’t be served.”
The American Bar Association has been aware of this problem for some time and it is planning to release an action plan in the next few months to help increase the number of reasonable people in the United States.
“The Harvard report is a great eye opener for many people, but we’ve been worried about this problem for a long time,” says Sandra Keyes, vice president of communications for the ABA. “What we’ll be recommending is a series of education programs aimed at making people more reasonable. With intensive effort, we can increase the number of reasonable people in the country 5 percent over three years, we believe, and maybe increase that to 10 percent by 2021. We might not meet that goal, but we know we must try. Justice depends on there being reasonable people in this country, so we will do everything we can to stop the hemorrhaging of reasonable people, reverse that, and increase their numbers going forward. We must try.”
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