From the Sentencing Law & Policy blog, the title of this post is the title of this notable new report authored by Jessica Eaglin and Danyelle Solomon for the Brennan Center for Justice.

Here is how the report is summarized:

People of color are overrepresented in our criminal justice system. One in three African American men born today will be incarcerated in his lifetime. In some cities, African Americans are ten times more likely to be arrested when stopped by police. With the national debate national focused on race, crime, and punishment, criminal justice experts are examining how to reduce racial disparities in our prisons and jails, which often serve as initial entry points for those who become entangled in the criminal justice system.

This report, which relies on input from 25 criminal justice leaders, pinpoints the drivers of racial disparities in our jails lays out common sense reforms to reduce this disparity, including increasing public defense representation for misdemeanor offenses, encouraging prosecutors to prioritize serious and violent offenses, limiting the use of pretrial detention, and requiring training to reduce racial bias for all those involved in running our justice system.


Thinking About Leadership: Dissent

posted by Judge_Burke @ 16:52 PM
June 26, 2015

I cannot say I personally always was good about dealing with it, but the most effective court leaders are very good at dealing with dissent. Leadership in courts is in many respects no different than many organizations. Effective leaders understand that getting people to buy into a shared vision is essential, but there are going to be times when people do not see the world the way you do. Ineffective leaders of courts too often take task conflict (which can at times be healthy) and turn it into personal conflict (which is rarely healthy).

And so I thought I would share my thoughts about dissent in this article published in Trends. Trends is a publication of the National Center for State Courts.

If you have the time and the inclination, I am interested in what you think.

- Judge Kevin S. Burke


An Environmental Court: An Innovative Specialty Court

posted by Judge_Burke @ 14:15 PM
June 25, 2015

The University of Hawaii law school, the Hawaii State Judiciary, and environmental organizations are gearing up for the launch of Hawaii’s environmental court on July 1 — the second of its kind in the nation.

Under the new system, the Hawaii Supreme Court chief justice designates one or more environmental judges for each circuit and for a district court within each circuit.

“Hawaii’s environmental court is a historic milestone for our island and the U.S.,” said Denise Antolini, UH William S. Richardson School of Law associate dean of academic affairs. “As the second U.S. state to have such a court, we join a growing global moment where hundreds of “green courts” have been established to provide consistent and expert guidance from the judges involved.”


View Full Story from Pacific Business News here.


The Sentencing Law & Policy blog recently reported that,

The Seventh Circuit . . . issued an otherwise routine affirmance of a drug conviction in US v. Presley, No. 14-2704 (7th Cir. June 11, 2015) (available here), the opinion end up not at all routine because of Judge Posner’s lengthy concluding (dicta?) about problems with exceedingly long federal sentences and the elderly prisoners these sentences create.  I would urge all federal sentencing fans to read Judge Posner’s work in Presley in full, and these passages help highlight why (even with lots of Judge Posner’s great cites and data left out):

The only questionable feature of the judgment is the length of the sentence — almost 37 years, though it is within the applicable guidelines range because of Presley’s very lengthy criminal history. Presley was 34 years old when sentenced… [and if he] earns the maximum possible good-time credit he’ll be almost 64 years old when released. If he earns no good time he’ll be almost 69.  And after release he’ll undergo five years of supervised release, which like parole is a form of custody because it imposes significant restrictions on the supervisee….

The judge pointed out that Presley is a career offender, that he began his criminal career when he was 16, that he was a large-scale heroin dealer, and that he had committed disciplinary violations in previous incarcerations.  What the judge failed to consider was the appropriateness of incarcerating Presley for so long that he would be elderly when released.  Criminals, especially ones engaged in dangerous activities such as heroin dealing, tend to have what economists call a “high discount rate” — that is, they weight future consequences less heavily than a normal, sensible, law-abiding person would….

The sentencing judge in this case … gave no reason to think that imposing a 37-year sentence on Presley would have a greater deterrent effect on current or prospective heroin dealers than a 20-year or perhaps even a 10-year sentence, or that incapacitating him into his sixties is necessary to prevent his resuming his criminal activities at that advanced age.  Sentencing judges need to consider the phenomenon of aging out of risky occupations.  Violent crime, which can include trafficking in heroin, is generally a young man’s game.  Elderly people tend to be cautious, often indeed timid, and averse to physical danger.  Violent crime is far less common among persons over 40, let alone over 60, than among younger persons….

There needs finally to be considered the cost of imprisonment to the government, which is not trivial.  The U.S. prison population is enormous by world standards — about 1 percent of the nation’s entire population — and prisons are costly to operate because of their building materials (steel especially is very expensive) and large staffs.  If the deterrent or incapacitative effect on criminal propensities fades sharply with time, the expenses incurred in the incarceration of elderly persons may be a social waste….

We are not suggesting that sentencing judges (or counsel, or the probation service) should conduct a cost-benefit analysis to determine how long a prison sentence to give. But the considerations that we’ve listed should be part of the knowledge base that judges, lawyers, and probation officers consult in deciding on the length of sentences to recommend or impose.  There is no indication that these considerations received any attention in this case.  We do not criticize the district judge and the lawyers and probation officers for the oversight; recognition of the downside of long sentences is recent and is just beginning to dawn on the correctional authorities and criminal lawyers.  Neither the Justice Department nor the defendant’s lawyer (or the probation service) evinced awareness in this case of the problem of the elderly prison inmate….

There is much that federal sentencing judges are required to consider in deciding on a sentence to impose — maybe too much: the guidelines, the statutory sentencing factors, the statutory and regulatory provisions relating to conditions of supervised release, presentence reports, briefs and arguments of counsel, statements by defendants and others at sentencing hearings.  But in thinking about the optimal sentence in relation to the problem of the elderly prisoner, probably the judge’s primary focus should be on the traditional triad of sentencing considerations: incapacitation, which prevents the defendant from committing crimes (at least crimes against persons other than prison personnel and other prisoners) until he is released, general deterrence (the effect of the sentence in deterring other persons from committing crimes), and specific deterrence (its effect in deterring the defendant from committing crimes after he’s released).  A sentence long enough to keep the defendant in prison until he enters the age range at which the type of criminal activity in which he has engaged is rare should achieve the aims of incapacitation and specific deterrence, while lengthening the sentence is unlikely to increase general deterrence significantly if the persons engaged in the criminal activity for which the defendant is being sentenced have a high discount rate; for beyond a point reached by a not very long sentence, such persons tend not to react to increases in sentence length by abandoning their criminal careers.




As reported in this AP piece, this week brought a big (but not entirely unexpected) federal court ruling concerning constitutional challenges to Minnesota’s civil commitment program for sex offenders.

Judge Frank is a former Minnesota District Court Judge. His thoughtful opinion can be found at:  Court’s Ruling on Minnesota Sex Offender Program.

Here are the basics:

A federal judge has ruled that Minnesota’s sex offender treatment program is unconstitutional, but has deferred any immediate action to await further proceedings on a remedy.  U.S. District Judge Donovan Frank largely sided with the more than 700 residents who were civilly committed to the Minnesota Sex Offender Program after they completed their prison sentences.

Their lawyers argued during a nearly six-week bench trial in February and March that the program is unconstitutional because nobody has ever been fully discharged from it, even those thought to be at low risk of committing new crimes. The state says it has improved the program, including moving more patients through treatment and perhaps toward provisional release.

Frank is calling on Minnesota government’s top leaders to personally appear in court to help come up with an alternative structure to a sex offender confinement program. Frank listed Gov. Mark Dayton, House Speaker Kurt Daudt and Senate Majority Leader Tom Bakk among those he wants to take part in a remedies phase that will start on Aug. 10. Frank says stakeholders must fashion a suitable remedy to avoid having the entire program be eliminated and resulting in the release of civilly committed offenders currently in secure facilities.

In Wednesday’s ruling, the judge lays out more than a dozen conditions for a restructured program, including that less-restrictive alternatives be implemented and new evaluation and discharge procedures be developed. Throughout his 76-page ruling, Frank says elected officials have been reluctant to modify the indefinite confinement of more than 700 sex offenders out of political fear. But Frank says “politics or political pressures cannot trump the fundamental rights” of those in the program. He stressed that the U.S. Constitution “protects individual rights even when they are unpopular.”

Gov. Mark Dayton says there won’t be immediate changes to the Minnesota Sex Offender Program in response to a federal judge’s ruling that it’s unconstitutional. In a statement that was released Dayton said, “We will work with the Attorney General to defend Minnesota’s law.”

Dan Gustafson, the attorney who brought the class action suit on behalf of the Minnesota Sex Offender Program clients said he is not surprised by the judge’s ruling. He said that he advised his clients to be patient because the remedies will take time to create and not all of the clients will be getting out.


Implicit Bias & Judges

posted by Judge_Burke @ 15:17 PM
June 17, 2015

A recent criminal justice-related article in The New York Times touches on implicit bias.

Some excerpts:

But studies suggest that implicit bias, rather than explicit racism, is behind many recent tragedies. Indeed, simulator experiments show that the biggest danger posed to young African-American men may not be hate-filled cops, but well-intentioned police officers exposed to pervasive, damaging stereotypes that link the concepts of blackness and violence.

Likewise, Americans have been sold a myth that there are two kinds of judges — umpires and activists — and that being unbiased is a choice that a person makes. But the truth is that all judges are swayed by countless forces beyond their conscious awareness or control. It should have no impact on your case, for instance, whether your parole hearing is scheduled first thing in the morning or right before lunch, but when scientists looked at real parole boards, they found that judges were far more likely to grant petitions at the beginning of the day than they were midmorning.


The full article is available here.


Eliminating the Competency Presumption in Juvenile Delinquency Cases

posted by Judge_Burke @ 14:00 PM
June 10, 2015

Since In Re Gault, judges in the United States have struggled with how to apply appropriate rules of procedure for juveniles. In its opinion, the Court in Gault underscored the importance of due process, stating that it “is the primary and indispensable foundation of individual freedom,” and that “the procedural rules which have been fashioned from the generality of due process are our best instruments for the distillation and evaluation of essential facts from the conflicting…data that life and our adversary methods present.”  In re Gault, 387 U.S. 1, 20 (1967).

Professor  David R. Katner (Tulane University – Law School) has posted Eliminating the Competency Presumption in Juvenile Delinquency Cases (24 Cornell Journal of Law and Public Policy 403 (2015)) on SSRN.

Here is the abstract:

The legal presumption used in virtually all juvenile delinquency cases in the U.S. is that all juveniles are competent to stand trial. This article calls for the elimination of that legal presumption, which is historically based on the Dusky v. United States decision and in the adult criminal justice system. The recent decisions of the U.S. Supreme Court recognize the developmental and organic brain differences between adults and juveniles. Current research demonstrates a higher frequency rate of incompetence based on intellectual deficiencies among children when compared with adults found to be not legally competent to stand trial.

By eliminating the competency presumption for juveniles in both delinquency and adult criminal proceedings, the party seeking an adjudication would be responsible for establishing that the accused juvenile is in fact, competent to stand trial. Foreign jurisdictions in Europe, Asia, Africa, and South America have long required higher thresholds — at least fourteen years of age — for holding juveniles accountable for criminal misconduct, none of them presuming that juveniles are competent to go to trial. In the alternative, by expanding the factors currently in use for determination of juvenile competency by adding developmental immaturity and mental illness, juvenile justice systems could identify the reduction of recidivist offending as the primary systemic objective.


CCI Seeks Criminal Courts to Participate in Procedural-Fairness Project

by Steve Leben

The Center for Court Innovation (CCI) is seeking courts to participate in an assessment of each court’s procedural-fairness practices. CCI is accepting applications until June 12 from local courts with the jurisdiction to hear criminal cases.

The official Request for Proposals gives full details on the project, but CCI says that it hopes to advance procedural-justice goals “by (1) highlighting promising practices for the field at large, (2) helping jurisdictions identify problem areas, and (3) outlining short- and longer-term plans to implement appropriate interventions.”

CCI suggests that this project “is targeted to criminal courts interested in deepening their understanding of procedural justice and examining whether and how their current practice promotes the core elements of procedural justice: voice, respect, understanding, and neutrality.” The selected sites will gain the feedback of outsiders who are familiar with the background research in this area.

The project will focus on four key areas at each site:

· Providing information about court procedures to court users and to the community;

· Fostering a user-friendly courthouse environment;

· Developing mechanisms to solicit and respond to feedback from staff and court users; and

· Improving the communication strategies used by judges and other court staff.

Project staff will provide suggestions for improving practices in each court.


Voir Dire

posted by Judge_Burke @ 14:00 PM
June 4, 2015

There are many judges who are, to put it charitably, not enthusiastic about voir dire. But, are they right? In a quest to “get things moving,” have important questions been left out of the voir dire equation?

Vida B. Johnson (Georgetown University Law Center) has posted Presumed Fair? Voir Dire on the Fundamentals of Our Criminal Justice System (Seton Hall Law Review, Vol. 45, No. 2, 2015) on SSRN.

Here is the abstract:

The American criminal justice system is built on three bedrock principles: the presumption of innocence, the burden of proof, and the standard of proof beyond a reasonable doubt. These ideals, however, are frequently ignored by jurors. Social science research has shown that jurors routinely believe that a defendant must prove his innocence, and that the mere fact that the defendant is standing trial is proof of guilt. Jurors persist in these beliefs despite proper instructions on the law.

Despite the acknowledged centrality of these legal ideals, trial courts in many jurisdictions, routinely prevent defense attorneys from questioning prospective jurors on these fundamental legal issues based on a mistaken view that jurors will follow the given instructions.

Unlike instructions, voir dire regarding prospective jurors’ ability or willingness to apply the presumption of innocence and hold the government to its burden of proof beyond a reasonable doubt is not granted uniformly across jurisdictions. While the Supreme Court has sanctioned voir dire in capital cases on whether jurors can impose the death penalty, it has thus far remained silent on whether there is a right under the Due Process Clause to question prospective jurors on the presumption of innocence and the government’s burden of proof of beyond a reasonable doubt. The states and federal circuits are split on the question.

This Article explores whether, in order to ensure fundamental principles of fairness, voir dire questions about the presumption of innocence and the burden of proof should be required in all criminal jury trials.



There was a recent story in the Washington Post entitled, Uncle Sam Had Better Start Treating His Employees Right.  The story is not about courts, but there are important lessons for court leaders.  The article says, in part:

The Office of Personnel Management recently released SES Exit Survey Results, reflecting the responses of 221 senior executives, from 24 agencies, who participated in the survey from April 2013 through July 2014.

One of the most troubling lines in the report said: “Work environment issues are the highest contributing factors in an executive’s decision to leave.”

The single largest factor for leaving cited by these top federal employees was the “political environment.” It was blamed as a contributing factor “to a great extent” or “to a very great extent” by 42 percent of those surveyed. There was a three-way tie for second place, among “senior leadership,” “organizational culture” and a “desire to enjoy life without work commitments.”


Court leaders cannot print their own money, but they can have enormous positive (or negative) impact on the morale of the courthouse workforce.

Many of the funding debates and discussions are conducted in forums in which court leaders are not able to unilaterally dictate the ultimate results. Where court leaders can have an influence is with courthouse-employee morale. So maybe where we can all be terribly more effective is to lead institutions with great employee morale.