Treatment of Mentally Ill Persons in the Criminal Justice System

posted by Judge_Burke @ 14:15 PM
April 27, 2015

The Urban Institute recently released this significant new report titled, “The Processing and Treatment of Mentally Ill Persons in the Criminal Justice System: A Scan of Practice and Background Analysis.”

Here is an excerpt from the first few paragraphs of the report’s executive summary (with few references omitted):

Mentally ill offenders possess a unique set of circumstances and needs. However, all too often, they cycle through the criminal justice system without appropriate care to address their mental health.  According to the Bureau of Justice Statistics, individuals with mental health needs make up a large proportion of the US correctional population.  An estimated 56 percent of state prisoners, 45 percent of federal prisoners, and 64 percent of jail inmates have a mental health problem.  These individuals often receive inadequate care, with only one in three state prisoners and one in six jail inmates having received mental health treatment since their admission.  Offenders with severe mental illness place even more strain on the criminal justice system as a whole, in terms of their unique case-processing requirements and treatment needs and their increased risk of recidivism. Housing mentally ill offenders in the criminal justice system is costly.  In addition to high health care costs, mentally ill inmates tend to have higher rates of prison misconduct and recidivism.

Despite the evidence that mental illness in the criminal justice system is a pressing concern, our comprehensive effort to identify cost-effective, evidence-based programs and policies for managing and treating mentally ill persons in the criminal justice system brought to light how limited current knowledge is on this topic.  There have been only a few rigorous evaluations of criminal justice programs and policies targeted at mentally ill offenders.  This limitation, in and of itself, is a notable finding, as it shows what more needs to be done to better understand how to effectively alleviate the costs and challenges of treating and processing offenders with mental illness in the criminal justice system. Given these challenges and their financial consequences for society and governments, it is important to understand how to identify and provide early intervention for those who suffer from mental illness in the criminal justice system.

This report focuses on the societal and economic costs of holding mentally ill offenders in jails and prisons.  It also presents a detailed discussion of how mentally ill offenders are processed in the criminal justice system, highlighting the diversity of protocols and practices outlined in state statutes to address these challenges.  Further, it discusses several promising criminal justice interventions and policies for mentally ill offenders….


From the Sentencing Law & Policy Blog…Just Where Can Sex Offenders Go?

posted by Judge_Burke @ 18:42 PM
April 24, 2015

There may well be no more dedicated legal blogger than Professor Douglas Berman. He is the Sentencing Law & Policy Blog. He recently wrote:

I did not miss this notable new story from the state up north headlined “Sex offenders can be within 1,000 feet of schools after federal judge strikes down parts of law.  Here are the details:

A federal judge struck down some portions of Michigan’s Sex Offender Registry Act in a court decision handed down last week.  U.S. District Court Judge Robert Cleland issued a ruling March 31, striking down four portions of Michigan’s Sex Offender Registry Act, calling them unconstitutional.  The ruling came in a lawsuit filed by the American Civil Liberties Union on behalf of five John Does and one Jane Doe against Michigan Gov. Rick Snyder and Michigan State Police Director Col. Kriste Etue.

Cleland’s ruling stated the “geographic exclusion zones” in the Sex Offender Registry Act, such as student safety areas that stretch for 1,000 feet around schools, are unconstitutional, according to court documents.

The law is too vague on whether the 1,000 feet barrier should be as the crow flies or how people actually travel, and if it goes from building-to-building or property-line-to-property-line, Cleland said in his ruling.  “While a prescribed distance may appear concrete on its face, without adequate guidance about how to measure the distance, such provisions are susceptible to vagueness concerns,” he wrote.

Cleland also stated law enforcement doesn’t have strong enough guidelines to know how to measure the 1,000-foot exclusion zone around schools. Neither sex offenders or law enforcement have the tools or data to determine the zones, even if the guidelines on how to measure the zones were stronger, he said. “Accordingly, due to (the Sex Offender Registry Act’s) vagueness, registrants are forced to choose between limiting where the reside, work and loiter to a greater extent than is required by law or risk violating SORA,” he wrote.

Cleland struck down other portions of the law as well, but ruled in favor of the government on the rest of the lawsuit. Other portions of the law ruled unconstitutional were: a requirement to report in person to the “registering authority” when an offender begins to drive a vehicle regularly or begins to use a new e-mail or instant messaging address; a requirement for an offender to report all telephone numbers routinely used by an offender; a requirement to report all e-mail and instant messaging addresses; a requirement to report the license plate number, registration number and description of any motor vehicle, aircraft or vessel used by an offender….

The ruling drew an immediate reaction from State Sen. Rick Jones, R-Grand Ledge. In a statement released Tuesday morning, Jones, a former sheriff, said he plans to help rewrite the law to make up for the judge’s ruling. “I warn sex offenders to stay away from schools. This is one judge’s ruling, and the law will soon be changed to clarify it,” said Jones, the chair of the Senate Judiciary Committee. “I’m working to make sure there is no vagueness in Michigan’s Sex Offender Registry law. Child molesters must stay away from our schools. Law enforcement will be watching.”

The full ruling, which runs 70+ pages, is available at this link.



Domestic Violence

posted by Judge_Burke @ 14:42 PM
April 23, 2015

Elizabeth Katz (Harvard University – Department of History) has posted Judicial Patriarchy and Domestic Violence: A Challenge to the Conventional Family Privacy Narrative (William & Mary Journal of Women and the Law, Vol. 21, No. 2, Winter 2015) on SSRN.

Here is the abstract:

According to the conventional domestic violence narrative, judges historically have ignored or even shielded “wife beaters” as a result of the patriarchal prioritization of privacy in the home. This Article directly challenges that account. In the early twentieth century, judges regularly and enthusiastically protected female victims of domestic violence in the divorce and criminal contexts. As legal and economic developments appeared to threaten American manhood and traditional family structures, judges intervened in domestic violence matters as substitute patriarchs. They harshly condemned male perpetrators — sentencing men to fines, prison, and even the whipping post — for failing to conform to appropriate husbandly behavior, while rewarding wives who exhibited the traditional female traits of vulnerability and dependence. Based on the same gendered reasoning, judges trivialized or even ridiculed victims of “husband beating.” Men who sought protection against physically abusive wives were deemed unmanly and undeserving of the legal remedies afforded to women.

Although judges routinely addressed wife beating in divorce and criminal cases, they balked when women pursued a third type of legal action: interspousal tort suits.

The most prominent example of this response is Thompson v. Thompson, 218 U.S. 611 (1910), in which the U.S. Supreme Court refused to allow a wife to sue her husband in tort for assaulting her. Judges distinguished tort actions from divorce and criminal suits because tort’s assertive legal posture and empowering remedy seemingly subverted established gender roles. In a world in which women appeared to be radically advancing in work and politics, male judges used the moral theater of their courtrooms to strongly and publicly address domestic violence but only in ways that reinforced gender and marital hierarchies.


Unemployment for Drug Sniffing Dogs?

posted by Judge_Burke @ 14:15 PM
April 22, 2015

The Supreme Court told the police Tuesday they may not turn routine traffic stops into drug searches using trained dogs.

The 6-3 decision ends the increasingly common practice whereby officers stop a car for a traffic violation and then call for a drug-sniffing dog to inspect the vehicle.

Justice Ruth Bader Ginsburg delivered the opinion of the Court in Rodriguez v. United States, No. 13-9972.  The Court held that absent reasonable suspicion, police extension of a traffic stop in order to conduct a dog sniff violates the Constitution’s shield against unreasonable seizures.

A routine traffic stop is more like a brief stop under Terry v. Ohio, 392 U. S. 1, than an arrest, see, e.g., Arizona v. Johnson, 555 U. S. 323, 330. Its tolerable duration is determined by the seizure’s “mission,” which is to address the traffic violation that warranted the stop, Illinois v. Caballes, 543 U. S. 405, 407 and attend to related safety concerns. Authority for the seizure ends when tasks tied to the traffic infraction are—or reasonably should have been— completed.

Justice Anthony M. Kennedy issued a dissenting opinion. Justice Clarence Thomas issued a dissenting opinion, in which Justice Samuel A. Alito, Jr. joined in full and Justice Kennedy joined in part. And Justice Alito issued a dissenting opinion. You can access the oral argument via this link.




Maybe the War on Drugs Lasted Too Long

posted by Judge_Burke @ 14:19 PM
April 21, 2015

This notable local news story is emerging from Chicago.  Here are the details:

Cook County prosecutors were set to announce major changes in how they prosecute low-level drug cases, including sending more nonviolent drug offenders to treatment, rather than prison.

State’s Attorney Anita Alvarez was scheduled to announce reforms to how her office handles minor drug cases, including dismissal of all future misdemeanor marijuana cases. The move also is expected to cover how prosecutors handle cases involving small amounts of other drugs; including ecstasy, cocaine, and heroin. The program would be focused on defendants with less than three arrests or citations for misdemeanor drug charges.

The announcement comes on April 20, also known as “4-20” day, in reference to a term used by marijuana smokers as slang for “lighting up,” but officials said the timing of the announcement and the date were only coincidental.

Alvarez was expected to detail the new drug prosecution strategy Monday morning, as part of an effort to keep nonviolent repeat drug offenders out of jail, and instead treat such cases as a public health issue. A spokeswoman for Alvarez’s office said, defendants currently facing a Class 4 felony drug possession charge could be sentenced to up to 3 years in prison, and a $25,000 fine. Her proposed changes to drug prosecutions would mean those same defendants would be sent to treatment programs instead of prison.

The move could free up prosecutor and law enforcement resources. In Cook County, such Class 4 felony drug cases made up 25 percent of all felony prosecutions last year. It was not immediately clear when the reforms would go into effect, but the changes would not affect pending cases already in the system.


An Interesting Piece from The Volokh Conspiracy

posted by Judge_Burke @ 14:09 PM
April 20, 2015

Professor Eugene Volokh had a recent piece that might be of interested to a lot of trial judges:

A New York trial court in Pujols v. City of New York, filed last week but just reported today in the New York Law Journal [log-in required], held that $11,175 fine for illegally posting 149 flyers advertising babysitting purposes ($75/flyer), posted by a poor working woman, violates the Excessive Fines Clause of the Eighth Amendment:

Petitioner is a 45 year old native Spanish-speaking person who does not write, read or speak the English language. She resides in the Washington Heights neighborhood of New York City in a single bedroom apartment, with a monthly rent of $1,060.85. Petitioner is the principal provider for her household supporting her 76 year-old mother and 57 year-old sister, both of whom share the single-bedroom apartment with her. Petitioner’s earnings are derived entirely through her private babysitting jobs. Petitioner’s total annual income in 2011 was $9,013.00, out of which she paid self-employment taxes totaling $1,107.00. She qualified for an earned income credit against taxes in the amount of $404.00. Petitioner’s sister contributes to the family income by earning approximately $300.00-400.00 per month by way of privately cleaning apartments. The family also receives food stamps.


Trouble in Kansas…Toto, Send Help

posted by Judge_Burke @ 14:16 PM
April 16, 2015

Kansas is the home to past Presidents of the American Judges Association and a fair number of Kansas judges. It is a state committed to effective judicial education, but it is also a state that was particularly hard hit by recent budget/funding challenges. Employees have suffered pay cuts in the form of furlough days.  Gavel To Gavel reports:

For the second year in a row Kansas legislators appear poised to give the courts more money on the condition they do not strike down certain laws as unconstitutional.

In 2014 the legislature enacted HB 2338 as amended. The bill, as detailed here and here, gave $2 million to the state’s judiciary on the condition that the courts not strike down other provisions in HB 2338 stripping the supreme court of administrative power, including how local chief judges are elected (currently the Supreme Court picks; HB 2338 would let local judges pick their own chief). HB 2338 contained a non-severability clause: if the Kansas courts strike down the stripping of the supreme courts authority or any other portion the entire bill/law falls including the additional funding.

In February 2015 a lawsuit was filed challenging the constitutionality of HB 2338 in light of the conflicting law (HB 2338: local judges pick the chief judges) and Supreme Court rule directing the Supreme Court pick. Moreover, the state’s constitution provides “The supreme court shall have general administrative authority over all courts in this state.” That lawsuit is pending a copy is located here.

Now in April 2015 a new funding bill has been introduced (HB 2005, as amended) to give additional funding for the Kansas courts. Under the new plan (HB 2005 as amended by the Senate) the judiciary will get funding for the upcoming year provided it does not rule in favor of the pending lawsuit and find that HB 2338 of 2014 is unconstitutional.

The provisions of this act are not severable, nor are they severable from the provisions of 2014 Senate Substitute for House Bill No. 2338, chapter 82 of the 2014 Session Laws of Kansas. If any provision of this act or of 2014 Senate Substitute for House Bill No. 2338, chapter 82 of the 2014 Session Laws of Kansas, is stayed or is held to be invalid or unconstitutional, it shall be presumed conclusively that the legislature would not have enacted the remainder of this act without such stayed, invalid or unconstitutional provision and the provisions of this act are hereby declared to be null and void and shall have no force and effect.

HB 2005 of 2015 was approved by the Senate Ways & Means Committee 3/25/15.


Developmental Differences of Juveniles

posted by Judge_Burke @ 15:56 PM
April 15, 2015

Mark R. Fondacaro, J.D., Ph.D. (John Jay College – CUNY) has posted Rethinking the Scientific and Legal Implications of Developmental Differences Research in Juvenile Justice (17 New Crim. L. Rev. 407 (2014)) on SSRN.

Here is the abstract:

A recent string of Supreme Court cases now ensures that fewer juveniles will be subjected to our most extreme punitive sanctions, a sign of forward movement toward evolving standards of decency in our culture and jurisprudence. However, this article will argue that there are potential long-term costs associated with the interpretation of developmental differences research relied upon by the Court, not only to juveniles and adults accused and convicted of serious crimes, but to the credibility of science and the legitimacy of the criminal law. The article draws on cutting-edge scientific research to argue that juveniles should indeed be treated differently than we currently treat adults for criminal offenses. However, the primary reason we should treat them differently is not because they are developmentally immature (which many of them may indeed be), but because our retributive justifications for adult punishment do not and will not stand up to scientific scrutiny and the ongoing, inevitable advances in the behavioral and biological sciences. Adolescent immaturity is just one example of the growing number of diminished capacities taking aim at the legitimacy of retributive justifications for punishment. As philosophical and commonsense explanations for criminal behavior give way to scientific and empirical analyses across biological, psychological, and social levels, the justification for and responses to criminal responsibility will need to shift from retribution and just desert toward more forward-looking, consequentialist approaches with both juveniles and adults.



Good Faith After Davis v. United States

posted by Judge_Burke @ 14:15 PM
April 14, 2015

Zachary Bolitho (Campbell University – Norman Adrian Wiggins School of Law) has posted Specifically Authorized by Binding Precedent Does Not Mean Suggested by Persuasive Precedent: Applying the Good Faith Exception after Davis v. United States on SSRN.

Here is the abstract:

A number of federal circuit courts have recently refused to apply the Fourth Amendment exclusionary rule to evidence obtained from GPS vehicle trackers that were installed and monitored without a warrant before United States v. Jones. Those courts have largely reached that result by invoking Davis v. United States, which held the exclusionary rule to be inapplicable where an officer relied on binding appellate precedent that was later overruled. More specifically, the circuit courts have viewed the Supreme Court’s 1983 decision in United States v. Knotts (addressing “beeper” tracking devices) as binding precedent that specifically authorized the warrantless installation and monitoring of GPS vehicle trackers prior to Jones.

The Fourth Circuit’s decision in United States v. Stephens is representative of the “Knotts is binding precedent under Davis approach” that most circuits have used to resolve the exclusionary rule question. This Article, therefore, uses Stephens as a vehicle for analyzing that approach. This Article argues that circuit court decisions like Stephens have stretched the holding of Davis and interpreted Knotts in a way that contradicts Supreme Court precedent. And, the circuit courts have done so for no good reason — they could have reached the same result (i.e., refusing to exclude the GPS vehicle tracker evidence) by working through the general good faith analysis. Instead, most of the circuit courts have chosen to resolve the exclusionary rule issue by defining the terms “specifically authorized” and “binding precedent” to mean “suggested” and “persuasive precedent.” In the process, the courts have converted the intentionally narrow holding of Davis into a broad decision with unknown boundaries.


The End of an Era at NADCP: West Huddleston Steps Down

posted by Judge_Burke @ 14:33 PM
April 13, 2015

If you have any connection to drug courts you know of West Huddleston. He has been a remarkable force in advancing drug courts.


The End of an Era at NADCP


On May 8, 2015, after seventeen years of incredible service with the National Association of Drug Court Professionals (NADCP), West Huddleston will step aside as Chief Executive Officer to serve as a Vice President and General Manager of  AMS-Scram Systems , the industry leader in cutting-edge justice technology.  We are so proud of what has been achieved under his leadership and we know that his impact on our system of justice and treatment will continue and be felt for many years to come.

West has dedicated the past twenty-five years of his professional life to pioneering programs that blend compassion with accountability to bring treatment and recovery to individuals caught up in the justice system. For nearly two decades at NADCP, he has given us his heart and intellect, his talent and passion. His impact on the justice system stretches to nearly every community in the United States and numerous countries across the globe.

After helping start and turn NADCP’s National Drug Court Institute (NDCI) into the preeminent source of advanced education, research and scholarship to the Drug Court field, West was unanimously board-appointed as CEO of NADCP in 2006. As CEO, West made his vision, our mission, “to put a Drug Court within reach of every American in need”. He rallied the field and pushed Congress for the expansion of Drug Courts and to apply the model to other populations including DWI offenders, native communities, juvenile and child protection cases, and most recently, to our veterans. In doing so, West founded NADCP’s National Center for DWI Courts and Justice For Vets.  Most recently under his leadership, NADCP has developed Best Practice Standards for Adult Drug Courts that are revolutionizing program operations to achieve an even greater impact.

As a national steward of the Drug Court, DWI Court and Veterans Treatment Court movement, he initiated a public policy strategy to bolster federal funding, and a public relations strategy to make Drug Courts, DWI Courts and Veterans Treatment Courts a household name. When West joined NADCP there were 347 Drug Courts and when he became CEO, the federal appropriation was $20 million. Today, there are 2,966 Drug Courts, DWI Courts and Veterans Treatment Courts and the federal appropriation is $104 million with another $260 million dedicated in state budgets. Millions of citizens have been exposed to the life-saving promise of Drug Courts through West’s All Rise campaign, celebrity PSAs and massive national media coverage.

West’s leadership and relentless belief that no individual is beyond hope is not his greatest legacy.  His impact extends beyond policy, publications and best practices; it can be found in the faces of those who were actually given life-saving treatment and a real shot at recovery in one of the many programs he has fought so hard to enable.

To honor his immeasurable impact on the justice system, the treatment court field, NADCP and the lives of those we serve, West will has earned our respect and upmost gratitude.  However, he is not leaving Drug Courts.  He will continue to be involved in an advisory capacity and special position at NADCP for years to come.

During this time of transition to new leadership, NADCP remains as strong and vibrant as ever, representing over 30,000 professionals in Drug Courts, DWI Courts, Veterans Treatment Courts, and Mental Health Courts throughout the nation and the world.

As Board Chair I will lead a national search process for a CEO to carry on the proud legacy fostered by West Huddleston.   In the meantime, with the deep bench of beloved and skilled leaders of staff and advisors, NADCP will continue its amazing work to ensure that Drug Courts, DWI Courts and Veterans Treatment Courts are championed, supported and celebrated.

I thank you for your ongoing support of NADCP, and most of all, for the life-saving work you do each and every day.


Judge Keith Starrett

Chairman of the Board