Should Candidates for Appointment to the Bench Have to Take a Physical?

posted by Judge_Burke @ 14:51 PM
June 24, 2016

If you want to play in the National Football League you are likely to attend the draft combine, and if you are a candidate to become a police officer in some jurisdictions you need to meet with a psychologist, but what if you simply want to be appointed to the bench? Because the bench is a very sedentary job, no one cares how fast you run. Although there is a case to be made that good mental health is “quite useful” while serving as a judge, no one asks for a psychological examination. Now there is a report from Ireland. It says,

New judges should undergo a medical examination before they are appointed to ensure they are physically fit enough for the task.

The recommendation was made by the body which advises the Government on judicial appointments.

At present, prospective judges simply have to give an undertaking that there is no reason connected with their health which would prevent them from performing their functions.

But the Judicial Appointments Advisory Board recommended that legislation be amended to enable the Justice Minister to require a prospective judge to undergo a medical examination before the appointment is finalised.

Alternatively, medical examinations could be introduced as an administrative requirement, the board said.


The recommendation was previously made as far back as 2002 but as yet has not been implemented. 


Bestiality Defined by the Supreme Court of Canada

posted by Judge_Burke @ 14:30 PM
June 15, 2016

The Supreme Court of Canada has upheld the acquittal of a British Columbia man in a decision that defines the crime of bestiality as penetration involving a person and animal.

The defendant  was found guilty three years ago of 13 counts arising from years of sexual molestation of his two step-daughters.One of those counts alleged bestiality under the Criminal Code, stemming from sexual activity  the family dog. The man successfully challenged the bestiality conviction in the B.C. Court of Appeal based on the fact the activity did not involve penetration.

In a 6-1 decision the Supreme Court of Canada  affirmed the B.C. Court of Appeal  ruling, rejecting the notion bestiality is an offence encompassing sexual activity of any kind between a person and an animal. The issue for both appellate courts was whether updates to the Canadian  Criminal Code in 1955 and 1988 altered the meaning of the crime of bestiality.

Justice Thomas Cromwell, writing for the majority, reviewed  the history of the bestiality  law — and its evolution from Church of England prohibitions in the 16th century to early laws enacted in colonial Canada — and ruled that lawmakers have always intended to single out only a certain subset of animal abusers.”Penetration has always been understood to be an essential element of bestiality,” Cromwell wrote. “Parliament may wish to consider whether the present provisions adequately protect children and animals. But it is for Parliament, not the courts, to expand the scope of criminal liability for this ancient offence.”

In her understated  dissenting opinion, Justice Rosalie Abella said she had a great deal of difficulty accepting that in modernizing amendments to the Criminal Code, “Parliament forgot to bring the offence out of the Middle Ages.”


How Big Should Your Supreme Court Be?

posted by Judge_Burke @ 14:30 PM
June 14, 2016

The State of Arizona has recently increased the size of their Supreme Court.  Here’s a state-by-state look at the number of judicial seats on state courts of last resort as of 2015.


One of the best legal blogs is Professor Doug Berman’s Sentencing Law & Policy. In a recent post he wrote, “The Wall Street Journal has this effective new article discussing the case now before the Wisconsin Supreme Court considering a defendant’s challenge to the use of a risk assessment tool in the state’s sentencing process.  The article’s full headline notes the essentials: “Wisconsin Supreme Court to Rule on Predictive Algorithms Used in Sentencing: Ruling would be among first to speak to legality of risk assessments as aid in meting out punishments.”

And here is more from the body of the article:

Algorithms used by authorities to predict the likelihood of criminal conduct are facing a major legal test in Wisconsin.  The state’s highest court is set to rule on whether such algorithms, known as risk assessments, violate due process and discriminate against men when judges rely on them in sentencing.  The ruling, which could come any time, would be among the first to speak to the legality of risk assessments as an aid in meting out punishments.

Criminal justice experts skeptical of such tools say they are inherently biased, treating poor people as riskier than those who are well off. Proponents of risk assessments say they have elevated sentencing to something closer to a science. “Evidence has a better track record for assessing risks and needs than intuition alone,” wrote Christine Remington, an assistant attorney general in Wisconsin, in a legal brief filed in January defending the state’s use of the evaluations.

Risk-evaluation tools have gained in popularity amid efforts around the country to curb the number of repeat offenders.  They help authorities sort prisoners, set bail and weigh parole decisions. But their use in sentencing is more controversial.

Before the sentencing of 34-year-old Eric Loomis, whose case is before the state’s high court, Wisconsin authorities evaluated his criminal risk with a widely used tool called COMPAS, or Correctional Offender Management Profiling for Alternative Sanctions, a 137-question test that covers criminal and parole history, age, employment status, social life, education level, community ties, drug use and beliefs.  The assessment includes queries like, “Did a parent figure who raised you ever have a drug or alcohol problem?” and “Do you feel that the things you do are boring or dull?”  Scores are generated by comparing an offender’s characteristics to a representative criminal population of the same sex.

Prosecutors said Mr. Loomis was the driver of a car involved in a drive-by shooting in La Crosse, Wis., on Feb. 11, 2013. Mr. Loomis denied any involvement in the shooting, saying he drove the car only after it had occurred. He pleaded guilty in 2013 to attempting to flee police in a car and operating a vehicle without the owner’s consent and was sentenced to six years in prison and five years of supervision.  “The risk assessment tools that have been utilized suggest that you’re extremely high risk to reoffend,” Judge Scott Horne in La Crosse County said at Mr. Loomis’s sentencing.

Mr. Loomis said in his appeal that Judge Horne’s reliance on COMPAS violated his right to due process, because the company that makes the test, Northpointe, doesn’t reveal how it weighs the answers to arrive at a risk score. Northpointe General Manager Jeffrey Harmon declined to comment on Mr. Loomis’s case but said algorithms that perform the risk assessments are proprietary. The outcome, he said, is all that is needed to validate the tools.  Northpointe says its studies have shown COMPAS’s recidivism risk score to have an accuracy rate of 68% to 70%. Independent evaluations have produced mixed findings.

Mr. Loomis also challenged COMPAS on the grounds that the evaluation treats men as higher risk than women.  COMPAS compares women only to other women because they “commit violent acts at a much lower rate than men,” wrote Ms. Remington, the state’s lawyer, in her response brief filed earlier this year in the Wisconsin Supreme Court. Having two scales — one for men and one for women — is good science, not gender bias, she said.

The parties appeared to find common ground on at least one issue. “A court cannot decide to place a defendant in prison solely because of his score on COMPAS,” Ms. Remington acknowledged, describing it as “one of many factors a court can consider at sentencing.” Her comments echoed a 2010 ruling by the Indiana Supreme Court holding that risk assessments “do not replace but may inform a trial court’s sentencing determinations.”


The Public Safety Exception to Miranda

posted by Judge_Burke @ 14:30 PM
June 8, 2016

Brian Gallini (University of Arkansas – School of Law) has posted The Unlikely Meeting between Dzhokhar Tsarnaev and Benjamin Quarles (Case Western Reserve Law Review, Vol. 66, No. 2, 2015) on SSRN.

Here is the abstract:

Everyone reads New York v. Quarles in law school. The Supreme Court’s 1984 decision in Quarles established the public safety exception—the first and only exception to the requirements of Miranda v. Arizona. But at the time of Quarles’s issuance, no one could have predicted just how big and forgiving the exception would become.

Whereas the defendant in Quarles provided a single response to a single law enforcement question while in custody immediately following his arrest, one of the two 2013 Marathon Bombers, Dzhokhar Tsarnaev, had a dramatically different experience. Four days after the April 15, 2013, Marathon Bombing, Tsarnaev was captured and the government preemptively invoked Quarles to question him for at least sixteen hours without providing Miranda warnings. During that time, Tsarnaev was severely injured, heavily sedated, asked for investigators to leave him alone, and requested a lawyer several times.

That contrast, in a nutshell, is the problem with Quarles. Scholars and courts alike have for years debated the limits, if any, on the public safety exception’s applicability. But this Article makes a different argument: if the government’s reliance on Quarles in the context of Tsarnaev’s interrogation is constitutionally correct, then law enforcement’s mentality about Miranda should change—and change now. Rather than Quarles serving as a “seldom-used” exception to Miranda, Miranda should become the exception to Quarles and officers should assume a threat to public safety following even a routine arrest. 


Decision Trees for Juries

posted by Judge_Burke @ 14:30 PM
June 7, 2016

Marie Comiskey (University of Toronto) has posted Tempest in a Teapot – The Role of the Decision Tree in Enhancing Juror Comprehension and Whether It Interferes with the Jury’s Right to Deliberate Freely? (Oñati Socio-Legal Series, Vol. 6, No. 2, 2016) on SSRN.

Here is the abstract:

This article explores the potential of the decision tree (also referred to as a flow-chart, “Route to Verdict” or question-trail) to improve the legal comprehension of jurors in criminal trials. It examines why the decision tree has not yet been adopted as a mainstream jury aid in the United States and suggests that the hesitancy is rooted in longstanding distrust of any attempt to encroach on the freedom of the jury and the concern that a list of questions to guide jury deliberations may unduly influence and compel a verdict that the jury would not otherwise render. The findings from research from England, Canada, Australia and the United States on the effectiveness of decision trees in enhancing juror comprehension is discussed. The reliance on decision trees in medicine to facilitate patient comprehension of treatment options and in assisting physicians to navigate through complex treatment protocols is also considered as instructive for the legal system. The paper suggests that decision trees neither interfere with a defendant’s constitutional right to a jury trial nor with a jury’s right to deliberate freely, and that greater use of this tool should be considered given the promising indications from empirical research that decision trees can enhance jurors’ recall and comprehension of legal concepts. Any concerns about the potential misuse of decision trees are overstated and can be remedied through clear instructions to the jury.


Race & Jury Selection in Canada

posted by Judge_Burke @ 14:30 PM
June 6, 2016

Regina Schuller and Caroline Erentzen (York University – Department of Psychology and York University, Department of Psychology, Students) have posted The Challenge for Cause Procedure in Canadian Criminal Law (Oñati Socio-Legal Series, Vol. 6, No. 2, 2016) on SSRN.

Here is the abstract:

There is a longstanding presumption in Canadian law that jurors will act impartially in carrying out their duties, but this presumption may be challenged when the defendant is a member of a racialized minority group. In those circumstances, the defence may initiate a challenge for cause procedure, wherein potential jurors are questioned about their ability to set aside any racial prejudice and judge the case solely on the evidence. Although the challenge for cause procedure has been in place for some time, little attention has been given to the process and whether it in fact effectively screens for juror bias. The present article provides an overview of the challenge for cause procedure, with particular attention to race-based challenges, as well as psychological research assessing the effectiveness of the procedure. Reference is made to the authors’ analysis of actual jury selection proceedings in which the challenge procedure was invoked. The data revealed that, although only a small percentage of potential jurors admitted to potential prejudice in open court, many more were excluded by triers and counsel.


Is There Science Behind Drug Courts Who Ban Medication?

posted by Judge_Burke @ 14:30 PM
June 3, 2016

Barbara Teresa Andraka-Christou has posted Essay: Improving Drug Courts Through Medication-Assisted Treatment for Addiction on SSRN.

Here is the abstract:

Empirical studies demonstrate that medication-assisted treatment (including the use of methadone, buprenorphine or naltrexone) is more effective at preventing opiate addiction relapse and recidivism than regular attendance at twelve-step groups or mental health counseling alone. However, less than half of drug courts provide access to medication-assisted treatment, and half of drug courts explicitly ban their use.

This essay explores why drug courts fail to provide the most medically advanced forms of drug addiction treatment. Reasons include the following: a cultural preference for abstinence-only treatments; belief that addiction medication is “immoral”; hyperbolic fear of the illegal diversion of medication; cultural loyalty to twelve-step groups; preference for morality-based approaches; and lack of knowledge about addiction treatment medications.

Finally, the essay proposes approaches for expanding medication-assisted treatment in drug courts. Proposals include increased judicial deference to physicians, collaboration between drug courts and community health providers, state funding incentives, enhanced training and educational opportunities for drug court staff, and incorporation of treatment methods in drug court accreditation.


Race and Jury Selection

posted by Judge_Burke @ 14:30 PM
June 2, 2016

In a 7-1 vote, the United States Supreme Court overturned the conviction and death sentence of a black Georgia man who was tried 30 years ago by an all-white jury in a case involving the murder of two white women.  The Court found that prosecutors purposely excluded black jurors.

Chief Justice John Roberts wrote the majority opinion and said that the prosecution’s multiple “neutral” explanations—one juror was too young, another worked with the mentally ill and thus might be soft-hearted, another said she wasn’t familiar with the scene of the crime but had once lived a few blocks away, and one had a son who had been arrested for stealing hubcaps and thus might be sympathetic to a murderous burglar—were false. Justice Roberts offered this assessment:  “Nonsense . . . the focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury.”

A 2010 Equal Justice Initiative study found that, in counties across the country, prosecutors dismissed nearly 80 percent of African Americans qualified for jury service during the seating process.  A 2012 Duke University study of non-capital cases found that all-white juries convict black defendants 16 percent more often than white defendants. And what’s more, the same study found, when juries included just one black person, 71 percent of black defendants and 73 percent of white defendants were convicted.

You can read the ruling in this case, Foster v. Chatman, and a timely profile of Stephen Bright, the lawyer who brought the case, in Atlanta Magazine.


A Call for Rethinking How We Sentence, from a Thoughtful Opinion

posted by Judge_Burke @ 15:01 PM
May 31, 2016

From The New York Times:

A federal judge in Brooklyn, in an extraordinary opinion that calls for courts to pay closer attention to the impact of felony convictions on people’s lives, sentenced a young woman in a drug case to probation rather than prison, saying on Wednesday that the collateral consequences she would face as a felon were punishment enough.

The judge, Frederic Block of Federal District Court, said that the broad range of such collateral consequences served no “useful function other than to further punish criminal defendants after they have completed their court-imposed sentences. ”The issue of collateral consequences and sentencing has been considered by other courts, but Judge Block’s 42-page opinion appears to be one of the most detailed examinations yet, combined with his call for reform.He noted that the inability to obtain housing and employment stemming from a conviction often results in “further disastrous consequences, such as losing child custody or going homeless,” and leads to many ex-convicts “becoming recidivists and restarting the criminal cycle.”