Peter A. Joy and Kevin C. McMunigal (Washington University in Saint Louis – School of Law and Case Western Reserve University School of Law) have posted Innocent Defendants Pleading Guilty (30 Crim. Just. 45 (Spring 2015)) on SSRN.
Here is the abstract:
United States District Judge Jed Rakoff recently wrote an interesting and timely article in the New York Review of Books highlighting the risk of innocent defendants pleading guilty and offering a proposal aimed at reducing this risk. (Jed S. Rakoff, Why Innocent People Plead Guilty, N.Y. REV. BOOKS, NOV. 20, 2014). Judge Rakoff recommends changing the Federal Rules of Criminal Procedure to allow federal magistrate judges to participate in plea negotiations early in criminal cases just as they now participate in settlement negotiations in civil cases. In this column we examine the reasons why we share Judge Rakoff’s concern and offer an assessment of his proposal.
Twitter Allows a 140-Letter Character Limit, Which is Something Not Known to Many People (or, At Least, to the Colorado Courts)
There are some prolific judges who use Twitter. For example, since joining Twitter in 2009, Texas Justice Willett has written more than 12,800 tweets. That doesn’t put him anywhere near the most prolific Twitter users, but, by his own reckoning, it does make him “probably the most avid judicial tweeter in America — which he said, “is like being the tallest munchkin in Oz.”
There are also courts that use Twitter, the most recent of which to employ Twitter is Colorado. The Colorado Supreme Court, Court of Appeals, and Office of the State Court Administrator all launched Twitter accounts, and to mark the occasion issued this news release:
The Colorado Supreme Court, Court of Appeals and Office of the State Court Administrator have taken to Twitter as a portal to communicate with the media and public about breaking news, the work of the Courts, and ongoing community education initiatives.
“Social media platforms such as Twitter have proven to be powerful and useful communication tools with deep reach to broad audiences,” Colorado Supreme Court Chief Justice Nancy Rice said. “I believe that Twitter will enhance our outreach and communication efforts as we pursue our mission to educate Coloradans about the roles, responsibilities and actions of our Courts.”
The Colorado Supreme Court (@CoSupremeCourt) will Tweet case announcements, oral argument schedules, proposed and adopted rule changes, committee actions, events like Courts in the Community hosted by the Justices, and other information related to the operation of the Supreme Court.
The Colorado Court of Appeals (@CoCourtAppeals) will also Tweet case announcements and oral argument schedules, as well as changes to any Court protocols and policies, Court outreach initiatives and events, and other important information related to the Court of Appeals.
The statewide Judicial Twitter handle (@CoCourts) will be used by the Office of the State Court Administrator, as well as Colorado’s District and County Courts, and will provide information on high-profile cases, press releases, media alerts, courthouse closures and delayed openings, judicial vacancies, career opportunities, jury information and other timely news.
In addition to Colorado Judicial’s robust Website, the Courts and Probation also have a presence on LinkedIn and Facebook. The Court’s public information officer, Rob McCallum, began using Twitter in 2012 as a way to communicate with the media and public about high-profile cases. McCallum will continue using his Twitter account (@rwmccallum) to complement the Courts’ accounts.
So no reader has to actually count the characters in the press release, this much is quite clear: the press release is 1846 characters too long for a Twitter posting…but then again, Colorado is new to Tweeting.
A new Brennan Center report analyzed 2015 crime data from the nation’s 30 largest cities and found that reports of a nationwide crime wave are unsupported. In fact, crime overall in 2015 is projected to be about 1.5 percent lower than last year. While murder rates are projected to be slightly higher than in 2014, the historically low baseline for murder means that a small increase in the number of murders can result in a percentage increase that seems more troubling than it should — and lends itself to shocking headlines. “The average person in a large urban area is safer walking on the street today than he or she would have been at almost any time in the past 30 years,” wrote authors Matthew Friedman, Nicole Fortier, and James Cullen. Several cities, including Milwaukee and St. Louis, have unusually high murder rates but also share significantly lower incomes, higher poverty rates, higher unemployment, and falling populations compared to the national average, while showing no indication of being part of a national trend.
Jennifer L. Skeem and Christopher T. Lowenkamp (University of California, Berkeley and Government of the United States of America – Administrative Office of the U.S. Courts) have posted Risk, Race, & Recidivism: Predictive Bias and Disparate Impact on SSRN.
Here is the abstract:
One way to unwind mass incarceration without compromising public safety is to use risk assessment instruments in sentencing and corrections. These instruments figure prominently in current reforms, but controversy has begun to swirl around their use. The principal concern is that benefits in crime control will be offset by costs in social justice — a disparate and adverse effect on racial minorities and the poor. Based on a sample of 34,794 federal offenders, we empirically examine the relationships among race (Black vs. White), actuarial risk assessment (the Post Conviction Risk Assessment [PCRA]), and re-arrest (for any/violent crime). First, application of well-established principles of psychological science revealed no real evidence of test bias for the PCRA — the instrument strongly predicts re-arrest for both Black and White offenders and a given score has essentially the same meaning — i.e., same probability of recidivism — across groups. Second, Black offenders obtain modestly higher average scores on the PCRA than White offenders (d = .43; appx. 27% non-overlap in groups’ scores). So some applications of the PCRA could create disparate impact — which is defined by moral rather than empirical criteria. Third, most (69%) of the racial difference in PCRA scores is attributable to criminal history — which strongly predicts recidivism for both groups and is embedded in sentencing guidelines. Finally, criminal history is not a proxy for race — instead, it fully mediates the otherwise weak relationship between race and re-arrest. Data may be more helpful than rhetoric, if the goal is to improve practice at this opportune moment in history.
Teams from all 50 states convened for a two-day event in Austin, Texas on November 9-10, “Improving Outcomes for Youth in the Juvenile Justice System: A 50-State Forum,” to build on successful juvenile justice reforms and to take aim at their next challenge: lowering re-arrest rates and ensuring youth in contact with the juvenile justice system are being positioned for success later in life.
In conjunction with the forum, the Council for State Governments Justice Center released a number of products and tools to support state and local juvenile justice systems to develop and effectively implement system-wide plans to improve outcomes for youth:
· Interactive Recidivism Reduction Checklists can guide state and local officials to assess whether policy, practice, and resource allocation decisions are aligned with the research on “what works.”
· Locked Out: Improving Educational and Vocational Outcomes for Incarcerated Youth shares the results of an unprecedented survey of juvenile correctional agencies in all 50 states to understand the extent to which states provide incarcerated youth with access to educational and vocational services; track and use student outcome data, and support school reenrollment for these youth. This issue brief highlights key survey findings and provides state and local policymakers with policy and practice recommendations to improve college and career readiness for incarcerated youth.
· Reducing Recidivism and Improving Other Outcomes for Young Adults in the Juvenile and Adult Criminal Justice Systems is designed to help state and local officials better support young adults in the justice system. It identifies young adults’ distinct needs, summaries the limited research available on what works to address these needs, and provides recommendations for steps that policymakers, juvenile and adult criminal justice agency leaders, researchers, and the field can take to improve outcomes.
· The infographics series, Improving Outcomes for Youth, detail three critical challenges faced by states to improve outcomes for youth, identify the key questions that policymakers should ask, and offer strategies for protecting public safety and using resources more efficiently.
No state has as of yet amended their canons of judicial ethics, nor is their any evidence that merit selection commissions – in those states that have them — have included this requirement…but there is something interesting going on with lawyers.
The Supreme Court of New Hampshire entered an order adopting various amendments to court rules. In that order, a modified and less-stringent version of Comment 8 was adopted than that adopted by the ABA in Model Rule 1.1. The New Hampshire Supreme Court adopted a New Hampshire Bar Association Ethics Committee comment that states:
“ABA comment  (formerly Comment ) requires that a lawyer should keep abreast of . . . the benefits and risks associated with relevant technology.” This broad requirement may be read to assume more time and resources than will typically be available to many lawyers. Realistically, a lawyer should keep reasonably abreast of readily determinable benefits and risks associated with applications of technology used by the lawyer, and benefits and risks of technology lawyers similarly situated are using.”
The New Hampshire change takes effect on January 1, 2016.
The other state that has adopted the duty of technology competence is New York. It was adopted by the New York State Bar Association on March 28, 2015. In New York, the Rules of Professional Conduct are promulgated by the Appellate Division of the Supreme Court, but the Appellate Division has not adopted any of the comments to the rules. Instead, the NYSBA adopts and publishes comments “to provide guidance for attorneys in complying with the Rules.”
The version of Comment 8 adopted by the NYSBA differs from the ABA’s version. It says that a lawyer should:
“Keep abreast of the benefits and risks associated with technology the lawyer uses to provide services to clients or to store or transmit confidential information.”
Thanks to Richard Zorza, we know a lot more about an important initiative in New York courts:
New York Making Big Progress on Multi-Lingual Court Orders
Many of us have long believed that creating multi-lingual court orders could have a big impact on compliance and court efficiency.
The New York courts have recently started taking big steps in that direction. As the press release says:
In April of this year, the [New York Unified Court System] commenced a pilot program utilizing bilingual orders of protection forms in Family Courts located in New York, Monroe, and Westchester counties. These forms have a Spanish translation either below or alongside the English text. Approximately 300 of the Spanish-English orders have been issued, with Chinese and Russian translations to be introduced by year’s end.
While, obviously, just the idea of bilingual orders is great, it is the way that they are being done that makes this project broadly viable, and relatively easily replicable nationally.
Continue reading here.
At the annual meeting of the American Association of Law Libraries, at least three companies exhibiting there were touting their tools for judge analytics.
It is a big data phenomenon. The quantity and variety of online information about and by judges reveals information about them that would have been virtually impossible to compile just a decade ago.
So who are these companies and what sorts of judge analytics do they provide? Here are three:
Lex Machina. Lex Machina’s Legal Analytics uses sophisticated software to analyze intellectual property cases. It extracts information from PACER federal court records, the USPTO and the U.S. International Trade Commission. Among the kinds of questions it says it can help answer are:
• How likely is a judge to grant or deny a specific motion?
• How long do cases take to terminate, get to trial, or get to the claim construction hearing before a judge?
• How likely is a judge to find patents, trademarks or copyrights infringed, invalid, or unenforceable?
Ravel Law. Ravel Law’s Judge Analytics promises to provide litigators with “never-before-available information and analysis about how individual federal court judges make decisions.” It pulls together data on the cases a judge has authored and the cases a judge cites to, as well as an analysis of other judges who have influenced them and other jurisdictions they consider most persuasive.
Users can examine how judges handled specific legal issues and find the exact sentences that judges like to copy and paste from opinion to opinion. Specifically, you can find:
• All of the opinions a judge has authored.
• All of the cases a judge has cited in those opinions.
• The frequency with which the judge cites specific circuits, judges and cases.
• How a judge applies the law in specific types of cases.
• How a judge relied on a specific cited case.
ALM Judicial Profiles. The legal news and information company ALM has offered judicial profiles for several years but is now making a push to further build it out. It provides access to judges’ case histories, biographical information and references in the news, and also lists lists lawyers and firms who have appeared before them in court.
As it now stands, ALM’s Judicial Profiles provides the following information for the judges it profiles:
• Biographical information.
• Case data, including data on active cases, opened cases and closed cases; cases by nature of suit; and specific details on active cases. The data can be filtered by nature of suit, data range, status and firms involved.
• Data on law firm appearances before the judge, showing the top firms and top attorneys and the cases they are involved in. The information can be filtered by nature of suit, date range and name of firm.
• Recent news stories mentioning the judge.
None of us should be so dogmatic that creative ideas should be regularly and systematically rejected. But, three person juries in exchange for a reduced sentence?
Ray McKoski has posted Betting Against the (Big) House: Bargaining Away Criminal Trial Rights (100 Iowa Law Review Bulletin 125 (2015)) on SSRN.
Here is the abstract:
Professor Gregory M. Gilchrist is the leading proponent of a new method for resolving criminal cases that he labels, “trial bargaining.” Under this scheme, defendants could trade away some of their trial rights in exchange for a charging or sentencing concession from the prosecution. For example, a prosecutor might agree to reduce a charge of armed robbery to simple robbery if the accused agreed to a three-person jury.
This short response to Professor Gilchrist’s proposal identifies three issues that must be addressed before experimentation with trial bargaining can begin. The first issue is whether the Supreme Court would uphold the constitutionality of trial bargaining. Second, will the sheer number of potential bargaining chips deprive the process of any semblance of uniformity and consistency? Finally, are there any fundamental safeguards that a criminal defendant should be prohibited from trading away?
The period between a person’s arrest and his or her case being adjudicated presents a significant opportunity to safely minimize future criminal justice involvement and make needed connections to behavioral health care. Nationally, about 17 percent of people entering jails pretrial meet criteria for a serious mental illness. In addition, about three-quarters of people with serious mental illnesses in jails have a co-occurring substance use disorder. These are individuals who, by and large, are eligible to receive publicly funded health care. Many communities have found ways to make effective connections to treatment for some individuals as part of pretrial release or diversion programs, but policymakers and practitioners continue to struggle to identify and implement research-based policies and practices at this stage of the criminal justice system.
This report introduces essential elements for responding to people with mental illnesses at the pretrial stage, including decisions about pretrial release and diversion. These elements encourage data collection not only to help individual communities, but also for future researchers who are dedicated to these important questions.
Read the full report here.