Thinking About Specialty Courts

posted by Judge_Burke @ 19:49 PM
April 19, 2019

Sara Gordon (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted About a Revolution: Toward Integrated Treatment in Drug and Mental Health Courts (North Carolina Law Review, Vol. 97, No. 2, p. 355, 2019) on SSRN. Here is the abstract:

This Article examines specialty courts, including drug, alcohol, and mental health courts, which proponents claim created a revolution in criminal justice. Defendants whose underlying crime is the result of a substance use disorder or a mental health disorder can choose to be diverted into a specialty court, where they receive treatment instead of punishment. Many of these individuals, however, do not just suffer from a substance use disorder or a mental health disorder; instead, many have a “co-occurring disorder.” Approximately 8.9 million American adults have co-occurring mental health and substance use disorders, and almost half of individuals who meet diagnostic criteria for one disorder will also meet criteria for the other. Moreover, an extensive body of literature has shown that treatment for co-occurring disorders should be integrated and that individuals should receive appropriate mental health and substance abuse treatment from a single clinician or clinical team.

This Article argues that the segregation of drug, alcohol, and mental health courts is out of step with our current understanding of the high rates of co-occurring disorders, and often fails to provide integrated treatment for the multiple disorders a single specialty-court participant might present.

Moreover, by segregating specialty courts, we are further stigmatizing addiction and failing to acknowledge that drug and alcohol use disorders are some of the many types of mental illnesses recognized by the medical community. Drug, alcohol, and mental health courts should therefore move away from their traditional siloed approach to the selection and treatment of participants and instead provide individuals with comprehensive and integrated treatment for co-occurring substance use and mental health disorders


Properly Funding Courts. A Report on Michigan

posted by Judge_Burke @ 13:11 PM
April 18, 2019

If there is an broken  Achilles heel of the state court systems it is the way we fund our courts. Minnesota went through an analysis decades ago. I served on two Commissions (one appointed by the Governor and one appointed by the Supreme Court). The change necessary is not easy……but in life change is often difficult but necessary. The Detroit Free Press reports, “A report released Monday by a state commission says the system for raising and spending money for Michigan trial courts is “broken” and requires major changes, including a different funding source to distance judges from raising money for court operations through fees and tickets.

The 14-member Trial Court Funding Commission — made up of judges, lawyers and others — agreed that there is a real or perceived conflict of interest between a judge’s impartiality and the obligation to use the courts to generate revenue; that inadequate funding from all sources is due to to excessive dependence on local government dollars, and that the discrepancies create unequal access to justice.

Circuit courts are fund users, one judge said, with budgets decided by their respective counties. District courts are “funders” — raising revenue with court fees and tickets. More than 70% of district court budgets are funded by local government support and court revenues.

“The (funding) system is unquestionably broken,” said Mason 55th District Judge Thomas Boyd. “A judge wants to hire another clerk or a new building has to be built. How to do it? They are asked: ‘Can you raise some revenue in court to pay for it?’ The answer is: ‘Sure.’

Judge Thomas Boyd of 55th District Court in Mason. (Photo: Ingham County)

“And it happens in court after court,” he said.

“And at one end, those who are most vulnerable and have the least access to financial resources are harmed,” Boyd said. “It’s got to be changed.”

The report says it costs up to $1.44 billion a year to run Michigan’s trial courts. Among its recommendations:

• Establish a stable court funding system with help from the state for receipt of all trial court assessments and state general fund payments. Distribute funds to trial courts based on the costs of operation.”


Lisa Foster: an Interesting and Impactful Former State Court Judge

posted by Judge_Burke @ 13:26 PM
April 17, 2019

Lisa Foster served as a California State court judge for nearly a decade before joining the United States Justice Department under President Obama.  She left the Justice Department after President Trump was elected and devotes her time toward reforming how the justice system deals with fines and fees. She is a dynamic speaker but more importantly she is making a difference.  Law360 interviewed FFJC Co-Director Lisa Foster about her career as a California state court judge and why she decided to dedicate herself to fines and fees reform. “There just seems to be an infinite variety of ways that legislators have concocted to take money away from people in the justice system.” Related: For the Fordham Law Review, Lisa explains why the fines and fees reform movement has seen success thus far.


An Important Decision From Canada

posted by Judge_Burke @ 13:31 PM
April 16, 2019

Ontario’s top court has ruled that placing inmates in solitary confinement for more than 15 days constitutes cruel and unusual punishment, a resounding legal defeat of Correctional Service Canada’s long-standing practice of isolating prisoners for weeks, months and even years at a time.

The landmark decision sets a cap of 15 days on solitary placements, the first time a Canadian court has imposed a specific limit on solitary confinement. It would come into force by April 13, the court ruled, a tight deadline for an unwieldy government entity that oversees 43 prisons, 23,000 offenders and a $2.4-billion annual budget.

“With this decision, the Court of Appeal has brought to an end a sorry chapter in the administration of Canada’s prisons,” said Michael Rosenberg, who served as co-counsel on the case for the Canadian Civil Liberties Association (CCLA), which launched the challenge of solitary confinement four years ago. “This is a significant win for the CCLA and for the administration of justice more generally.”


Sentencing Offenders with Mental Health Conditions and Disorders

posted by Judge_Burke @ 21:53 PM
April 15, 2019

From Judge Wayne Gorman:

In Overarching Principles: Sentencing Offenders with Mental Health Conditions or Disorders, Consultation, April 9, 2019, the Sentencing Council for England and Wales has published a “draft guideline for courts to use when sentencing offenders with mental health conditions, neurological impairments or development disorders”.

The Sentencing Council notes that “[a]vailable evidence suggests that people in the criminal justice system are more likely to suffer from mental health problems than the general population, for example, when a survey screened prisoners on arrival at prison, 23 per cent reported that they had some prior contact with mental health services. 17 per cent of the prison population is thought to have a learning disability compared with 2 per cent of the population, and while the exact number of people with autism in prison is unknown, the proportion is thought to be double that within the general population. A recent study showed that Hospitalised Head Injury (HHI) was found in 24.7 per cent of prisoners and was significantly more prevalent than found in the matched general population sample”.

Under the heading, “Assessing Culpability”, the Sentencing Council listed the following factors for consideration (at page 9):

Did the offender’s condition mean it impaired their ability to exercise appropriate judgement?

Did the offender’s condition impair their ability to make rational choices, or to think clearly?

Did the offender’s condition impair their ability to understand the nature and consequences of their actions?

Did the offender’s condition have the effect of making them disinhibited?

Were there any elements of premeditation or pre-planning in the offence, which might indicate a higher degree of culpability?

Were there attempts to minimise their wrongdoing or to conceal their actions, which might indicate a higher degree of culpability?

Did the offender have any insight into their illness, or did they lack insight?

Did the offender seek help, and fail to receive appropriate treatment or care?

If there was a lack of compliance in taking medication or following medical advice, was this influenced by the condition or not?

If the offender exacerbated their condition by drinking/taking drugs, were they aware of the potential effects of doing so?


What Is Excessive? An Issue Many Judges Are About To Be Asked To Decide

posted by Judge_Burke @ 21:23 PM
April 11, 2019

By Martin Kaste

Tyson Timbs won his Supreme Court case in February, but he still doesn’t have his Land Rover.

“I want my truck back, I’ve always wanted it back,” says Timbs, whose Land Rover was seized by police in Indiana. They took it after he was arrested for selling a small amount of heroin to undercover cops; he served a period of house arrest and probation for the drug crime, punishments he accepted.

But Timbs never accepted that police were also entitled to his $42,000 vehicle, which he’d bought with proceeds from an insurance settlement.

“I thought it was kind of ridiculous that they could take my vehicle so easily,” he says.

And yet this kind of confiscation is common. Called “civil asset forfeiture,” it was developed as a law enforcement tactic in the drug war of the 1980s. Authorities use the lower standard of proof of civil law to take property — usually cars or cash — based on the suspicion it’s associated with crime. In Timbs’ case, police suspected he’d used the Land Rover to transport heroin. Since the tactic was developed, billions of dollars of assets have been seized this way.

View Full Story From NPR.


Will The Sky Fall If There Is Bail Reform?

posted by Judge_Burke @ 20:59 PM
April 10, 2019

A report by state judicial officials in New Jersey concludes that recent bail reforms have not generated a spike in crime rates predicted by prosecutors and bail industry advocates. See NORTHJERSEY.COM for this story.


An Interesting Read: Justice Sandra Day O’Connor

posted by Judge_Burke @ 20:21 PM
April 9, 2019

From the ABA Journal:

Retired Justice Sandra Day O’Connor privately commented that her replacement was dismantling her legacy, according to a new O’Connor biography scheduled for release on March 19.

O’Connor, known as a swing justice, believed that conservative Justice Samuel A. Alito Jr. had betrayed her accomplishments, according to biographer Evan Thomas. The National Law Journal and NPR have previews of the book, First, Sandra Day O’Connor: An Intimate Portrait of the First Woman Supreme Court Justice.

O’Connor had viewed Alito as aloof and told a friend that he had no sense of humor, according to the book.

NPR calls the new book “an unvarnished and psychologically intuitive look at the nation’s first female Supreme Court justice, and some of her contradictory characteristics. She was tough, bossy, relentless and, beneath that, she could be emotional. In private, she was not afraid to cry—and she had a soft spot for others when they needed it.”

While on the court, O’Connor encouraged collegiality by trying to get more justices to show up for weekly lunches. At first, only four justices were attending. O’Connor would show up in missing justices’ chambers and sit there until they came with her, the biographer told NPR.

O’Connor persevered when Justice Clarence Thomas joined the court in 1991 after a difficult confirmation battle. Justice Thomas at first turned down her invitations to the weekly lunch, but he eventually joined the group.

“A little simple thing, but he joined the group because he realized that life has got to go on, this group has got to get along,” Evan Thomas told NPR. “She made him realize that.”

The book also reveals O’Connor’s role in the Bush v. Gore decision halting a Florida recount in the 2000 presidential election. The court’s decision paved the way for George W. Bush to become president.

O’Connor persuaded Justice Anthony M. Kennedy to join her reasoning that put an end to the recount, according to the National Law Journal’s preview of the book. Kennedy wrote the per curiam decision but O’Connor wrote the phrase that the ruling was “limited to present circumstances.”

O’Connor retired from the court in 2006 with the goal of helping her husband, who had Alzheimer’s disease. She revealed in October that she also has the beginning stages of dementia that is probably Alzheimer’s. Her brother Alan had said her greatest fear was that she would get the disease, according to the biography.



Should The American Judges Association Reach Out To Immigration Judges?

posted by Judge_Burke @ 18:03 PM
April 8, 2019

The American Judges Association is a unique professional association for judges. Perhaps the time has come for us to reach out to the immigration judges and invite them to join. They are a beleaguered group of judges who could use our support.  The American Bar Association says the nation’s immigration courts are on the “brink of collapse” due to the high volume of cases. See CNN. Also on the brink of collapse in many jurisdictions is the volunteer network helping migrant families like the ones now in Arizona. See AZ Mirror.



Constitutional Rights Of The Homeless

posted by Judge_Burke @ 19:43 PM
April 4, 2019

A federal appeals court earlier this week confirmed that the homeless cannot be prohibited arbitrarily from sleeping outside by sweeping city ordinances designed to clear out public property. The 9th U.S. Circuit Court ruling applies to all Western states in its jurisdiction, including Washington, where there has been a bitter battle in Seattle over what to do with sprawling homeless encampments. View the opinion here.