Are There Really “Plenty of Shapiros Out There”? 
A Comment on the Courage of Norma L. Shapiro – Part One

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Abstract:

 

Norma Levy Shapiro, a trailblazing jurist on the United States District Court for the Eastern District of Pennsylvania for nearly forty years, died on July 22, 2016. Widely remembered for her judicial courage, Judge Shapiro relentlessly followed her conscience in the courtroom and stanchly eschewed the whims of popular opinion. That path, however, sometimes attracted ruthless criticism. A pre-presidential Donald Trump, for instance, once quipped, “[u]nfortunately, there are plenty of Shapiros out there, which is one major reason why our streets are full of dangerous convicts.” Judge Shapiro nonetheless maintained her steadfast commitment to justice, her indelible moral compass, and her unmistakable compassion for the parties in her courtroom. In this post, the first in a series of four short retrospective essays, I revisit the harsh denunciations by former president Trump and other critics of Judge Shapiro to tell a compelling story of fierce courage, ethical integrity, and judicial independence. Judge Shapiro’s vacancy on the federal bench, like so many others, has been filled by the next generation of judges. Her legacy, however, leads us to wonder if perhaps Trump was at least partially correct: Are there really plenty of Shapiros out there?

 

Introduction

 

Norma Levy Shapiro, the late United States District Court judge, was a judicial trailblazer who presided on Philadelphia’s storied federal bench for nearly forty years. Litigators around the country knew Judge Shapiro as a sharply intelligent jurist and a formidable force both inside and outside the courtroom. Fearlessly and fastidiously committed to justice, she was never afraid to make unpopular decisions. Nor could she have predicted that those decisions would be remembered long after her death. This series of posts will revisit some of the harshest denunciations of Judge Shapiro, not to revive the controversies of her decisions, but to tell a remarkable story of unflinching courage, ethical integrity, and judicial independence. This story is based on personal recollections from my long friendship with Judge Shapiro, my experience as her law clerk, and the collective memory of other law clerks who knew her well.


Let us begin with a passage from a book published in 2000 by then-businessman Donald Trump. In “The America We Deserve,” former president Trump included the following didactic account of Judge Shapiro’s most famous case, Harris v. Pernsley:

 

Criminals are often returned to society because of forgiving judges. This has to stop. A judge who decides unilaterally to reduce sentences can cause immediate damage to a community if he or she releases dangerous criminals from jail. That’s why we need to hold judges more accountable, and the best way to make that happen is to elect them. When they hurt us, we need to make sure we can vote them out of the job.

 

Think what wonders a public vote would work on the career of Norma Shapiro, a district court judge in Pennsylvania who was appointed by President Jimmy Carter. I think Carter has done a lot for the world, but Judge Norma Shapiro was not his most brilliant appointment.

 

Shapiro once ordered the release of six hundred prisoners, apparently because she thought prisons were getting too crowded. I should add that she ordered the release of six hundred prisoners per week. Guess what happened next.

 

As reported in Crime: Turning the Tide in America, the U.S. Senate brought in witnesses in June 1997 to find out the extent of the disaster Judge Shapiro had created. They described a nightmare. One witness told the Senate Judiciary Committee that during one eighteen-month period after Shapiro’s jailbreak, the released convicts committed nearly ten thousand crimes, including seventy-nine murders, ninety rapes, and hundreds of other violent crimes. One victim, Daniel Boyle, was a twenty-one-year-old Philadelphia police officer. From 1988 to 1992, 20 percent of thugs arrested for killing cops were out on probation or parole. In my opinion, Judge Shapiro was a willing accessory to all those crimes.


Unfortunately, there are plenty of Shapiros out there, which is one major reason why our streets are full of dangerous convicts.

 

Trump’s account of Judge Shapiro’s conduct during Harris contains several “alternative facts,” 2 but it sheds light on a crucial aspect of her judicial personality and approach to judging. Consider, for a moment, the oddity that a district judge had such a profound and controversial impact on the public debate that Donald Trump attacked her years before he was a national political figure. For decades, Judge Shapiro was among the most controversial and polarizing federal trial judges in the nation, and during her tenure, she was often on the receiving end of attacks from those who vigorously disagreed with her. 3 She rarely, if ever, responded to such criticisms in public, though they wounded her. Rather, she stood her ground and persevered.


 It takes rare guts to stick to your principles given such headwinds.  This retrospective series will recount Judge Shapiro’s unflappable resolve by highlighting particular examples of her courage in action. Of the thousands of matters before her court, I have selected three memorable cases that exemplify Judge Shapiro’s ability to make difficult and foreseeably unpopular decisions when she believed justice required such outcomes. Her sense of justice, however, rested on neither personal ideology nor political agenda. Indeed, she was known to heap scorn on those who expected her to articulate a judicial philosophy. “My job is to resolve cases!” she’d exclaim. For Judge Shapiro, justice required nothing more than a meticulous command of the facts and an accurate understanding of the law. Proper mastery of the facts and the law, in turn, gave Judge Shapiro the courage for which she became so widely known.


While Judge Shapiro never viewed herself as a reformer of the criminal justice system, many of her most notable decisions left a deep imprint on the criminal adjudication system and corrections law.  This series, therefore, focuses on her prisoner litigation docket, although she was equally if not more interested in civil law. In each of the three featured cases, Judge Shapiro found that the state had violated the Constitution so clearly that she ordered some or all of the petitioners to be released from prison. In each case, Judge Shapiro assumed the risk of reversal and the boomerang of public criticism for making an unpopular decision necessary to prevent abuse of power by other branches of government. These cases, taken together, outline a rough sketch of Judge Shapiro’s constitutional philosophy, capture the essence of her compassionate and courageous approach to criminal justice, and impart her belief in the importance of judicial independence as a safe harbor for courts to operate free from external interference. Judge Shapiro’s judicial legacy would be honored should these principles come to serve as a loadstar for the next generation of judges.

1 The author is grateful to David Hoffman for his contributions to this Essay.

2 Among them (and excluding the case’s origin and history, which we will discuss in the text): the Senate Judiciary Committee hearing was held in June 1998, not 1997; the “witness” testimony before the Judiciary Committee appears to refer to remarks made by Senator Orin Hatch during a debate about the Judicial Improvement Act of 1998; and, in Hatch’s account, the number of inmates released was 500, not 600, per week. Fifteen years after publication of President Trump’s comments, the death sentence of the defendant convicted in the murder of Police Officer Daniel Boyle was commuted based on evidence of the defendant’s severe intellectual disability. Commonwealth v. Bracey, 117 A.3d 270 (Pa. 2015). To be fair to President Trump, he probably didn’t read, and certainly didn’t write, the passage, at least not unilaterally.

See, e.g., Jack McGuire, DA Assails ‘Wimp’ Judges, Prison Cap, Phila. Daily News, June 1, 1994, at 6. (“[Philadelphia District Attorney Lynn] Abraham blasted U.S. District Judge Norma Shapiro for imposing the [prison population] cap, saying it has ‘placed many Philadelphians, besides police, in jeopardy.’ ‘You people should be directing a campaign against her,’ Abraham told the audience of about 150 spouses and others.”).

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