The Amazing Chief Justice Beverley McLachlin

posted by Judge_Burke @ 16:58 PM
December 13, 2017

Canada is about to lose one of the finest jurists in North America:  Chief Justice Beverley McLachlin is retiring. She made a difference in her country, but for those who have had the privilege to meet her, her influence transcended.

I first met her when invited to speak in Canada about the relationship between courts and the media. Canadian judges are traditionally quite reserved about talking to the media. There are of course good reasons to limit what a judge is willing to comment to the media about, but appropriate comment to the media promotes public understanding of our branch of government. Chief Justice McLachlin understands that.

Great court leaders have to have the courage to occasionally take on the rest of government when the independence of the judiciary is under attack. There are court leaders who are far too hesitant to speak up. Chief Justice MaLachlin with dignity had the courage to speak up when a champion for the judiciary was needed:

Supreme Court of Canada Chief Justice Beverley McLachlin fought back tears Thursday as she said goodbye after serving nearly three decades on the country’s highest court.

“Whatever lies ahead, I know that my time here will always be the centrepiece of my life,” she said.

​McLachlin, 73, announced her retirement in June, but Thursday’s hearing about the cross-border beer case of a New Brunswick man was her final day on the bench.

She received a standing ovation.

“It’s been intellectually stimulating, it’s been hugely challenging, and there’s not been a day when I haven’t thought, ‘I am the luckiest of people,’” she said.

“It has been, as they say vernacularly, a terrific ride.

McLachlin was sworn in as a justice of the Supreme Court of Canada in 1989 and became the first woman to hold the top post when she was appointed in 2000.

She said she was grateful for her “good fortune” of serving during a period when Canadian law has “grown so greatly.”

“Don’t get your hopes up respondents, that’s a general statement,” she quipped to Gerard Comeau’s lawyers, prompting laughter in the packed Ottawa courtroom.

Comeau’s lawyers are urging the court to strike down interprovincial trade barriers that led to his being nabbed by police for bringing 14 cases of cheap beer and other alcohol home from Quebec, which could have far-reaching implications.

The court has reserved decision to an undetermined date. McLachlin officially retires on Dec. 15, but will continue to weigh in on cases she has heard until next summer. A successor has not yet been named.


For the full story, go here.



Fairness in Fines and Fees

posted by Judge_Burke @ 18:38 PM
December 12, 2017

A long time ago there were discussions about “day fines.” The idea never really caught on in the United States, but the idea is pretty simple. Fines and fees ought to be scaled to take into account the ability to pay. Surely Bill Gates can afford a fine greater than someone on welfare.

There are judges who agree, but there are others who say either it is too difficult to ascertain the ability to pay on crowded calendars, or who just think it is fair to say “if you did the crime” the penalty is the same.

Professor Beth Colgan has authored this new and timely article on the issue, available via SSRN.

Here is the abstract:

There is growing recognition that economic sanctions — fines, surcharges, fees, and restitution — are routinely imposed at rates many people have no meaningful ability to pay, which can exacerbate financial instability and lead to the perception that economic sanctions are unfairly punitive to people of limited means.  Concerns triggered primarily by highly punitive tactics, including incarceration and long-term probation of low-income debtors for the failure to pay, have led to increasing calls for reform.  While much attention is now being paid to the back-end of the system, and particularly limitations on punitive responses for the failure to pay due to poverty, this Article considers the problem from the front-end.  In particular, this Article focuses on a potential reform with increasing bipartisan support: the graduation of economic sanctions according to a person’s financial circumstances.

To that end, this Article explores several key considerations essential to designing a system of graduation, relying heavily on a largely-forgotten experiment in seven geographically, demographically, and politically diverse jurisdictions in the United States with the “day-fine.”  A day-fine is calculated using a penalty unit assigned based on the seriousness of the offense of conviction.  The penalty unit is then multiplied by the defendant’s adjusted daily income to determine the day-fine amount.  The result is an economic sanction adjusted to offense seriousness and simultaneously graduated to the defendant’s financial condition.  This Article mines the historical record of the American day-fines experiments — complemented by recent interviews with people involved in the design and implementation of the projects and experiences with means-adjustment in the consumer bankruptcy, tax, and public benefits contexts — for lessons on the design of graduating economic sanctions.  What emerges from this review is promising evidence that a properly designed and implemented system for graduation is consistent with efficient court administration, revenue generation, and equality in sentencing. 


New York Courts Think Outside The Box

posted by Judge_Burke @ 14:30 PM
December 7, 2017

How to deal with low level offenders is perplexing. Jailing them is expensive and likely has minimal long term effectiveness. Fines and fees have gotten out of hand. Governing Magazine has an interesting story about thinking outside of the box in the New York courts:

Like many other cities, New York wants to reduce its jail population and repeated lock-ups of low-level offenders. The city’s latest attempt to address that goal centers around a bold idea that could be modeled nationwide: Do away with all jail sentences of less than a month.

That’s the idea behind newSTART, a jail diversion program launched in New York last month. It keeps defendants who have committed low-level misdemeanors — things like petty larceny or possession of small amounts of illegal drugs — from entering jail. It would also apply to people convicted of thefts of service, such as jumping a subway turnstile or exiting a taxi without paying.

Instead, in exchange for a guilty plea, misdemeanor defendants can opt for one or more social service programs, including drug treatment, job training and mental health counseling.


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“We are hopeful that the program will stop the return to jail and [create] a virtuous circle,” says Elizabeth Glazer, director of the Mayor’s Office of Criminal Justice.

Right now, the program is limited to defendants who have been sentenced to up to 10 days in jail. If it’s successful, it will be expanded to those convicted of crimes carrying sentences up to 30 days.

But not all defendants who fit that time frame will be eligible.

The program specifically targets defendants in need of social services and those who have been repeatedly arrested for similar crimes. Almost three-quarters of those facing short-term sentences are unemployed, and more than 40 percent are homeless, according to the Mayor’s Office of Criminal Justice.

NewSTART is seen as an improvement from previous jail diversion programs. In the past, defendants who opted for jail diversion ran the risk of serving more time than their initial sentence if they failed to complete the diversion program. For example, a person could escape a five-day jail sentence by opting for a diversion program — but then end up sentenced to 30 days in jail if they failed to complete that diversion program.

That undermined the point of the diversion program, says Jennifer Scaife, executive director of Prevention, Diversion, & Reintegration for the Mayor’s Office of Criminal Justice. “People were opting for jail instead of services, which didn’t stop the cycle of going to jail repeatedly.”

Under the new plan, the city will recommend that those who fail to complete the program be sentenced to no longer than 15 days in jail. Final discretion for sentencing, however, remains with judges.

Proponents of sentencing reform have pointed to the economic and social disruptions that even a short stay in jail can impose on poor and at-risk populations.

“Since the individuals who qualify for this programming are not major threats to public safety, it is far more productive to engage them in constructive programming than to impose punishment,” says Marc Mauer, executive director of The Sentencing Project, a group that advocates for corrections reform. “Certainly, not everyone who goes through the program will succeed. But even a modest success rate will often be more beneficial than warehousing [inmates] in jail for a week.”

At its core, the program is designed to rely on the expertise of job counselors, drug treatment specialists and mental health providers to break the cycle of incarceration, says Glazer from the city’s criminal justice office.

“All these providers know how to change the behavior of the people they serve so they don’t go back to jail. They use strategies that teach people to make better decisions,” she says. “It’s not the same old, same old.”

Executing the plan has also required buy-in from both prosecutors and judges — complicated somewhat by the fact that New York actually has five separate borough court systems, each with its own judges and district attorneys. So far, the effort is in place in Manhattan, Brooklyn and the Bronx.

“NewSTART is a promising way to hold offenders accountable in a constructive and humane fashion which may also help decrease recidivism,” says acting Brooklyn District Attorney Eric Gonzalez.

The plan is part of the city’s broader effort to reduce its jail population, which has already been cut in half over the last 20 years when you include people awaiting court dates, according to the mayor’s office.

In 2016, Mayor Bill de Blasio committed $17.8 million to roll out a citywide bail alternative program. Building on pilot programs started in Queens and Manhattan during former Mayor Michael Bloomberg’s administration, the program allows low-level offenders to remain at home under court supervision while they await trial.  De Blasio also committed $89 million to address what had been a rise in the number of mentally ill inmates in city jails. The city is also on pace to close its notorious Rikers Island facility in the next 10 years. That jail has been plagued by gang violence, inmate abuse by guards and a 2015 incident in which inmates fell ill after consuming meatloaf containing rat poison.

Thanks to New York’s sheer size and prominence, other cities will undoubtedly be watching as it tests this new approach.

“There are efforts around the country to reduce jail time,” says Adam Mansky, director of operations at the Center for Court Innovation, which has partnered with New York to connect defendants with social workers. “New York has shown leadership in this area with supporting expanded use of alternatives to jail.”


How Good are Judges at Assessing Remorse?

posted by Judge_Burke @ 18:22 PM
December 6, 2017

Determining credibility is among the most difficult tasks a trial judge has. Judges make factual findings. But, judges are not necessarily better than others at figuring out who is telling the truth. For example, in a controlled study of 110 judges with an average of 11.5 years on the bench, judges did not do better than chance in telling who was being truthful and who wasn’t. See Paul Ekman & Maureen O’Sullivan, Who Can Catch a Liar?, 46 Am. Psychologist 913 (1991); Richard Schauffler & Kevin S. Burke, Who Are You Going to Believe?, 49 Court Rev. 124 (2013). 

Judge Learned Hand once said, “The spirit of liberty is the spirit which is not too sure that it is right.” So if determining who is telling the truth is problematic, what about determining the sincerity of remorse? 

There is a new paper, written by Professor Eve Hanan, that addresses this issue and is now available via SSRN. 

Here is the abstract:

Whether a defendant expresses remorse at criminal sentencing often has a direct bearing on the severity of the sentence.  But how good are judges at accurately assessing genuine, meaningful remorse?  Research demonstrates that judges hold contradictory and unfounded views about how sincere remorse should be expressed and, as a result, are likely to misjudge remorse.  Legal and social science scholars have grappled with the challenge of accurately assessing remorse, but no one has analyzed whether implicit racial bias skews remorse assessments at criminal sentencing in predictable and systematically discriminatory ways.

In an effort to unmask this mode of discrimination, this Article synthesizes two areas of scholarship not previously compared — (1) scholarship on the role of remorse in criminal sentencing and (2) social science research on implicit racial bias — to argue that unconscious cognitive assumptions about race and criminality causes judges to discredit African American displays of remorse and, as a consequence, sentence them to harsher punishments.  At a time when racial disparity and implicit bias dominates national discussions of criminal sentencing reform, improving our understanding of where our criminal justice system is particularly susceptible to racial bias can help reformers mend these weaknesses in our system to ensure it works equally for everyone.


In Tone and Criminal Justice

posted by Judge_Burke @ 15:35 PM
November 30, 2017

Federal District Court Judge Mark Bennett has been one of the nation’s judicial leaders in confronting the issue of implicit bias. He is one of the contributing authors of the ABA publication Enhancing Justice: Reducing Bias (as are Judge Steve Leben & I).

Judge Bennett and Victoria Plaut have a new paper that is well worth reading now on SSRN.

Here is the abstract:

Social psychologists have established that faces of Black males trigger thoughts of violence, crime, and dangerousness and thoughts of crime trigger thoughts and images of Black males. This presumption of dangerousness increases with darker skin tones (colorism) and greater Afrocentric facial features and affects both men and women.

We examine the history of the stereotype of Blacks and crime, violence, and dangerousness arising in the United States from the time of slavery. We focus on the historical development of this stereotype through a lens of history, literature, pseudo-science, emerging neuroscience, media distortion of crime reporting, and the development of the Negro-ape metaphor. We then look beyond the Black-White race dichotomy to explore the evolving social science literature examining the influence of skin tone and Afrocentric facial features on the length of criminal sentences. We further explore the social science supporting the presumption of dangerousness and conclude with recommendations to help ameliorate this problem that permeates the American criminal justice system.




Procedural Fairness from the Center for Court Innovation

posted by Judge_Burke @ 15:00 PM
November 14, 2017

From the Center for Court Innovation:

In a new TED Talk, Judge Victoria Pratt draws on her experience with Newark Community Solutions to explain the real-life impact of procedural justice.

“It’s a concept that says if people perceive that they are treated fairly and with dignity and respect, they’ll obey the law,” says Pratt.

The experience of Newark Community Solutions suggests that by addressing people respectfully, using plain language to ensure understanding, allowing defendants to voice their concerns, and emphasizing neutrality, justice agencies can help restore public trust in justice.

To learn more about procedural justice, watch our video or read our new book, and to learn how we have promoted this and other evidence-based strategies, follow us on Twitter or Facebook or subscribe to our newsletter.


Should We Drink Strong Coffee on the Bench?

posted by Judge_Burke @ 16:40 PM
November 13, 2017

Many years ago I had a civil trial where by week two, five of the six jurors had fallen asleep. When the last juror nodded off the lawyers approached the bench and pointed to the sleeping juror. In frustration, I responded that although I would wake up the juror, this was the last time I would. “The two of you put these jurors to sleep, so if you do it again you figure out how to wake them up.”  

The issue of whether it is an abuse of discretion not to wake up jurors was never raised on appeal, but I do allow jurors to drink coffee and indeed serve it to them. So, what about us? What happens if we fall asleep? Not to worry if you are a judge in Illinois.

Judges sleeping during trial? No problem, says Illinois appeals court:

It’s not “reversible error” requiring a new trial for the defendant. The case involved a defendant in a quadruple murder case whose judge fell asleep during the presentation of security camera footage. He was then “allegedly poked awake” by his clerk. Defense attorneys say the judge fell asleep repeatedly during the trial. The judge said he was listening with his eyes closed. Chicago Tribune


The Law of Stop

posted by Judge_Burke @ 15:30 PM
November 7, 2017

Each day many judges are confronted with how to apply the law of stop. We do it so often that there is a danger we could become a bit callous. Alexandra Natapoff (University of California, Irvine School of Law) has posted A Stop is Just a Stop: Terry’s Formalism (Ohio State Journal of Criminal Law, Vol. 15, 2017, Forthcoming) on SSRN.

Here is the abstract:

Terry v. Ohio expanded police authority by creating a new legal category—the stop based on reasonable suspicion, an easier standard to meet than an arrest based on probable cause. The formal line between those two categories, however, has turned out to be blurry. In practice, stops morph easily into arrests even without new evidence, an elision that Terry doctrine does not contemplate. The implications are significant for the enormous misdemeanor arena where legal rules generally lack traction, and Terry stops are common. Once those stops become arrests, they typically convert smoothly into criminal charges, which easily become convictions. Terry stops thus influence eventual outcomes far more than they should given their lightweight evidentiary basis. This slippery slope undermines the integrity of basic distinctions between policing and prosecution throughout the petty offense process, an unprincipled state of affairs exacerbated by the original Terry compromise.


How Would You Rule?

posted by Judge_Burke @ 15:31 PM
November 6, 2017

When a suspect has invoked the right to consult with a lawyer is occasionally not clear. It surely helps when there is a record such as an audio or video tape, but even then it may not be clear. Professor Eugene Volokh had this recent piece in The Washington Post. How would you rule? 

From last Friday’s opinion by Justice Scott J. Crichton, concurring in the Louisiana Supreme Court’s denial of review in State v. Demesme (paragraph breaks added):

I agree with the Court’s decision to deny the defendant’s writ application and write separately to spotlight the very important constitutional issue regarding the invocation of counsel during a law enforcement interview.

The defendant voluntarily agreed to be interviewed twice regarding his alleged sexual misconduct with minors. At both interviews detectives advised the defendant of his Miranda rights and the defendant stated he understood and waived those rights. Nonetheless, the defendant argues he invoked his right to counsel. And the basis for this comes from the second interview, where I believe the defendant ambiguously referenced a lawyer — prefacing that statement with “if y’all, this is how I feel, if y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog cause this is not what’s up.”

As this Court has written, “[i]f a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable police officer in light of the circumstances would have understood only that the suspect might be invoking his right to counsel, the cessation of questioning is not required.” State v. Payne(La. 2002); see also Davis v. United States (1994) (agreeing with the lower courts’ conclusion that the statement “[m]aybe I should talk to a lawyer” is not an unambiguous request for a lawyer). In my view, the defendant’s ambiguous and equivocal reference to a “lawyer dog” does not constitute an invocation of counsel that warrants termination of the interview and does not violate Edwards v. Arizona (1981).

Of course, amusing as this is, it’s possible that the transcript didn’t do the request justice: If there was a pause before and after “dog” (“why don’t you just give me a lawyer, dog”), then maybe the request was fairly clear. On the other hand, if the defendant did want a lawyer, he could have presumably asked again, and more clearly.



Plan For Your Disaster

posted by Judge_Burke @ 14:30 PM
November 3, 2017

Given the current hurricane season in the South, wildfires in the West, and who knows what other calamities elsewhere, we should all be thinking about how to handle disaster. Trends in State Courts has a review of recent efforts, mostly by legislatures, to give courts more power to handle disasters:

Maintaining Court Operations When Disaster Strikes: Emergency Powers

What happens when a courthouse is rendered unusable following a man-made or natural disaster? Many states have started to grant special powers to chief justices and court leadership to help courts meet these challenges.