Empty judgment without shame or guilt


The American idealist philosopher William Ernest Hocking once observed: “Only the man who has enough good in him to feel the justice of the penalty can be punished.”

This is an important sentiment to consider as we reflect upon the plight of former judge Fred Davis III. Davis’ actions landed him in the middle of a protracted and shameful scandal that sullies the halls of justice.

As has been widely reported, back in June 2004, Davis, who at the time had been a circuit judge for 16 years, was stopped in Hot Springs on suspicion of driving while intoxicated, a misdemeanor. During that stop, officers noticed a dealer license plate on his 2002 Avalanche. The vehicle had not been registered since the year of its purchase.

Davis, was convicted later in 2004 of misdemeanor DWI and received a one-year suspended sentence.

In 2005 he was convicted of felony tax evasion after earlier being charged with failure to register a vehicle and unlawful use of dealer tags, (the latter charges, both misdemeanors). He was given a three-year suspended sentence and resigned from the bench.

The conviction was later upheld by the state Court of Appeals.

Subsequent to all the criminal convictions, the Supreme Court Committee on Professional Conduct recommended Davis be disbarred, but a special judge recommended last Thursday that Davis be sanctioned and reprimanded. The high court suspended Davis’ law license for five years.

As if all of this wasn’t bad enough, it is Davis himself who exposes the ugliest dimension of this tangled web. The opinion of the court, authored by Justice Donald Corbin, provides all the condemnation necessary: “We are troubled by a lack of remorse on (Davis’) part for the damage to the legal profession that his serious misconduct has caused. We are furthermore troubled by the presence of an aggravated factor not discussed by the special judge — (Davis’) refusal to acknowledge the wrongful nature of his conduct.”

The opinion said Davis “persists in maintaining the position that his conduct amounted to nothing more than procrastination and inattention to his personal business matters.”

This then suggests — as the opening quote by Hocking depicts — that Davis may not have sufficient good in him to feel the justice of the penalty. In other words, this penalty does not punish him, because he clearly thinks he did little wrong.

How many of us would have such a luxury?

The most damaging aspect of this travesty resides in the fact that Davis was a sitting judge. We expect those elevated to such positions to rule with a certain moral authority. One cannot pass judgment on criminals whilst being one himself. This isn’t what “a jury of one’s peers” was supposed to mean.

Even so, here we are. Criminologist David Karp of George Washington University helps us reconcile the problem we face in this mess. While Davis has been found guilty, he clearly does not assent to his guilt, nor does he appear to be ashamed.

Karp explains an important aspect of the issue: “The distinction between guilt and shame is… blurred by the concept of ‘guilt- tripping.’ Making someone feel guilty is not possible unless they have a conscience. If so, guilt-tripping involves uncovering hypocrisy: the disjunction between the behavior and the internalized standard. Successful guilt-tripping requires that the offender recognize how (their) behavior is inconsistent with her own standards. Shaming, on the other hand, is a process of making the offender aware of how her behavior has violated a moral code that she has not necessarily internalized.”

Perhaps Davis’ actions were consistent with his own standards. Therein lies the crux of the problem. Lastly, we wonder how many of those individuals compelled to stand before Davis’ bench feel similarly dismayed with the person empowered to judge their guilt or innocence.