Sex Offenders, Treatment & The Fifth Amendment

posted by Judge_Burke @ 14:30 PM
May 24, 2016

If you don’t regularly read the Sentencing Law & Policy blog, you should.  As an example:

A helpful reader alerted me to two new ruling from the Colorado Supreme Court concerning sex offender supervision and the Fifth Amendment.  Here are links to the opinions and the summary that appears at the start:

People v. Ruch, No. 13SC587, 2016 CO 35 (May 16, 2016) (available here):

This case requires the supreme court to determine whether the trial court properly revoked the defendant’s probation for, among other things, refusing to enroll or participate in sex offender treatment based on his concern that in the course of such treatment, he would have been compelled to incriminate himself in violation of the Fifth Amendment.

The supreme court perceives no Fifth Amendment violation here, where the trial court revoked the defendant’s probation based on his total refusal to attend treatment.  In these circumstances, the defendant’s purported invocation of his Fifth Amendment rights was premature and amounted to a prohibited blanket assertion of the privilege. Accordingly, the court holds that the trial court properly revoked Ruch’s probation based on his refusal to attend treatment.

People v. Roberson, No. 13SA268, 2016 CO 36 (May 16, 2016) (available here):

The supreme court concludes that on the facts presented here, the defendant’s Fifth Amendment privilege against self-incrimination precluded the district court from revoking the defendant’s sex offender intensive supervision probation based on his refusal to answer a polygraph examiner’s question regarding his use or viewing of child pornography while he was on probation.  On the record before the court, however, the court is unable to determine whether the defendant’s privilege against self-incrimination precluded the district court from revoking the defendant’s probation based on his refusal to answer questions concerning any post-trial sexual fantasies involving minors that he might have had within the six months immediately preceding the polygraph examination.  Accordingly, the supreme court makes its rule to show cause absolute and remands this case to the district court with directions that the court conduct further proceedings as more fully set forth in this opinion.


You can find the Sentencing Law & Policy blog here.




Plea Bargaining from the Ground Up

posted by Judge_Burke @ 14:30 PM
May 23, 2016

Designing Plea Bargaining from the Ground Up: Accuracy and Fairness Without Trials as Backstops


Stephanos Bibas 

University of Pennsylvania Law School


William & Mary Law Review, Vol. 57, P. 1055, 2016

U of Penn Law School, Public Law Research Paper No. 16-6


American criminal procedure developed on the assumption that grand juries and petit jury trials were the ultimate safeguards of fair procedures and accurate outcomes. But now that plea bargaining has all but supplanted juries, we need to think through what safeguards our plea-bargaining system should be built around. This Symposium Article sketches out principles for redesigning our plea-bargaining system from the ground up around safeguards. Part I explores the causes of factual, moral, and legal inaccuracies in guilty pleas. To prevent and remedy these inaccuracies, it proposes a combination of quasi-inquisitorial safeguards, more vigorous criminal defense, and better normative evaluation of charges, pleas, and sentences. Part II then diagnoses unfair repercussions caused by defendants’ lack of information and understanding, laymen’s lack of voice, and the public’s lack of information and participation. To prevent and fix these sources of unfairness, it proposes ways to better inform pleas and to make plea procedures more procedurally just.




The below recent decision by the British Columbia Court of Appeal will no doubt be read with interest by Canadian judges, but judges in the United States should also read this decision and reflect as to why similar approaches to the law do not occur in the United States.

The U.S. has a problem with mass incarceration — and like it or not, judges are a big reason as to why the U.S. has such a high incarceration rate. True, there are legislative mandatory minimums, so the blame can be shared, but being a “co-defendant” in a mass incarceration epidemic is hardly a courageous position to be in. 

In R. v. Dickey, 2016 BCCA 177, April 25, 2016, the accused were charged with the offences of trafficking and possession for the purpose of trafficking, contrary to section 5(3) of the Controlled Drugs and Substances Act. The offences were committed in a public place usually frequented by persons under the age of 18 years or by using the services of a person under the age of 18 years or with the involvement of such a person. 

Sections 5(3)(a)(ii)(A) and (C) of Controlled Drugs and Substances Act provide for a minimum two-year prison sentence when an offence is committed in or near a school, on or near school grounds, or in or near any other public place usually frequented by persons under the age of 18 years; or using the services of, or involving, such a person.

At their sentence hearings, the accused argued that this minimum sentence contravened section 12 of the Charter and constituted cruel and unusual treatment. In each case, the sentencing judge agreed and held that the provision of the Controlled Drugs and Substances Act which require the imposition of a minimum prison sentence infringed section 12 of the Charter, by virtue of section 52 of the Constitution Act, 1982, were of no force or effect, and were not saved by s. 1.

The Crown appealed.  The appeals were dismissed.  The British Columbia Court of Appeal concluded that “in some circumstances, s. 5(3)(a)(ii)(A) and (C) would constitute cruel and unusual punishment and accordingly infringe s. 12 of the Charter because a minimum two-year prison sentence would be grossly disproportionate to an appropriate sentencing disposition.  They would do so in a way that cannot be demonstrably justified in a free and democratic society such that they are of no force or effect” (at paragraph 11).


The British Columbia Court of Appeal noted that the Supreme Court of Canada held in R. v. Nur that “a sentence which constitutes cruel and unusual punishment is one that is grossly disproportionate to the punishment that is appropriate having regard for the nature of the offence and the circumstances of the offender.”  The Court of Appeal described the test to be applied in considering the constitutionality of the provisions in issue being the following (at paragraph 27):

It follows that, in considering whether the minimum two-year prison sentence for which s. 5(3)(a)(ii)(A) and (C) of the Act provide infringes s. 12 as being cruel and unusual punishment, it is necessary to determine whether in each instance the sentence is a punishment that is grossly disproportionate to the proportional sentence that is appropriate for the offender, or a reasonably foreseeable hypothetical offender. This entails a two-step process: first, an appropriate sentence must be determined having regard for the objectives and principles of sentencing provided in the Criminal Code; and then, it must be determined whether the minimum prison sentence requires the imposition of a sentence that is not merely excessive, but grossly disproportionate to the appropriate sentence. If it does, the punishment infringes s. 12 and the sentence cannot be imposed unless demonstrably justified under s. 1.

R. v. Dickey-Section 5(3)(a)(ii)(A) (committed the offence in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years):

The Court of Appeal concluded that in Dickey a sentence of six months imprisonment was appropriate. They concluded that the imposition of the minimum two year sentence would infringe section 12 of the Charter (at paragraph 68):

The imposition of a two-year prison sentence in a federal penitentiary would not only be a disproportionate punishment, but one that would be grossly so if imposed on Dickey (and more so on a younger hypothetical offender) when compared to an appropriate sentence.  In determining whether a minimum sentence is grossly disproportionate, the comparison of the appropriate sentence and the statutory minimum sentence to be imposed would seem to always be the first consideration, as it was in Nur.  There are contextual factors to consider that may have a bearing on the determination in any given instance, but there would appear to be none that would render a minimum two-year prison sentence for Dickey other than grossly disproportionate.  As the judge concluded, it does infringe s. 12 of the Charter.

The Court of Appeal concluded that “while the section has a pressing and substantial objective, being the protection of young people from the drug trade, it cannot be said that it is proportional to that objective because, while there may be a rational connection to what are the penological objectives of denunciation and deterrence, the section does not constitute a minimal impairment of the right infringed and the deleterious and salutary effects of it are not proportional” (at paragraph 73). 

R. v. Bradley-Luscombe-Section 5(3)(a)(ii)(C) (used the services of a person under the age of 18 years, or involved such a person, in committing the offence):

The Court of Appeal concluded that in Bradley-Luscombe a sentence of eight months imprisonment was appropriate. They concluded that the imposition of the minimum two year sentence would infringe section 12 of the Charter (at paragraphs 114 to 116):

The circumstances would not have been rendered less exceptional if one of the offender’s children had been 17 years of age and the offender had in some minimal way involved him or her in the possession of the small amount of the drug that was the subject of the guilty plea.  It would indeed be difficult to say that, having regard for the offender’s medical condition in particular, sentencing him to two years to be served in a federal penitentiary would not, in the circumstances, have been a grossly disproportionate punishment.

Clearly, in the same way s. 5(3)(a)(ii)(A) infringes s. 12 of the Charter, so too does s. 5(3)(a)(ii)(C).

The second question arising is then whether s. 5(3)(a)(ii)(C) can be said to be demonstrably justifiable under s. 1.  It cannot for the same reason s. 5(3)(a)(ii)(A) cannot: the section is not proportional to its penological objectives because, while there may be a rational connection to them, the section does not constitute a minimal impairment of the right infringed – there is no exception for exceptional circumstances – and the deleterious and salutary effects are not proportionate.


Fair Punishment Project

posted by Judge_Burke @ 14:30 PM
May 19, 2016

Harvard Law School’s Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute announced  the Fair Punishment Project (FPP).

The Fair Punishment Project will use legal research and educational initiatives to ensure that the U.S. justice system is fair and accountable.  The Project will work to highlight the gross injustices resulting from prosecutorial misconduct, ineffective defense lawyers, and racial bias and exclusion. The announcement said:  

We’ll be releasing our first report in the next day or two, so keep an eye out — you don’t want to miss it.  Future reports will highlight the troubling attributes that outlier death penalty counties have in common, examine America’s top 10 deadliest prosecutors, and look deeply into counties that are plagued by prosecutorial misconduct. 

The Charles Hamilton Houston Institute was launched in 2005 by Harvard Law School professor Charles J. Ogletree Jr. The Institute serves as a critical bridge between scholarship, law, policy, and practice to solve the challenges of a multi-racial society.  The Criminal Justice Institute trains Harvard Law School students who will be the next generation of ethical, effective, and passionate defense lawyers.  Led by Ronald S. Sullivan Jr., the Institute leads research of the criminal and juvenile justice systems in order to affect local and national reform.

The Fair Punishment Project will strive to be a valuable resource for anyone and everyone who is interested in bringing about a fair and equitable justice system.  We hope you will visit our website at to learn more about our work, and that you will join us as we address one of the most critical issues of our time. Here are titles and links to some of the notable sentencing-related content already up at the FPP website:


William H. Rehnquist Award

posted by Judge_Burke @ 14:30 PM
May 18, 2016

Two Past Presidents of the American Judges Association have received  the Rehnquist Award. AJA members should take this announcement seriously.

NCSC seeks nominations for
William H. Rehnquist Award

An invitation from Mary McQueen, president of the National Center for State Courts (NCSC)

It is my pleasure to invite nominations for one of the nation’s highest judicial honors, the National Center for State Courts’ William H. Rehnquist Award for Judicial Excellence. This prestigious award recognizes a state court judge who demonstrates the outstanding qualities of judicial excellence exemplified by the late Chief Justice Rehnquist. Chief Justice John G. Roberts, Jr., will present the award at a dinner to be held at the United States Supreme Court on November 17, 2016. 

Nominating a candidate for the award is an excellent means of expressing appreciation to those who have served and have set an example worthy of recognition and emulation. You will find more information about the nominating process on our website at

Please submit your nominations by Friday, June 17, 2016. 


Should The Law Permit You To Spank Your Kids? A Canadian Perspective…

posted by Judge_Burke @ 14:30 PM
May 17, 2016

In promising to enact all of the recommendations of the Truth and Reconciliation Commission, the federal Liberals have agreed to remove a section of law that allows parents to spank their kids without fear of prosecution.

Groups that oppose corporal punishment of children have spent many years urging successive governments in Ottawa to repeal Section 43 of the Criminal Code that permits parents and teachers to use reasonable force to correct the behaviour of youngsters in their care.

The Truth and Reconciliation Commission, which heard thousands of tales of physical abuse inside Indian residential schools, said in its final report that “corporal punishment is a relic of a discredited past and has no place in Canadian schools or homes.” The repeal of Section 43 was No. 6 on a list of 94 “calls to action” included in the report, which was made public last week.

When asked if Prime Minister Justin Trudeau’s promise to act on every TRC recommendation meant repealing the so-called spanking law, a spokesman for Justice Minister Jody Wilson-Raybould would only say the government remains committed to implementing all of the commission’s calls to action.

In 2004, the Supreme Court of Canada ruled that physical force was acceptable within certain bounds – it cannot be used on children under the age of 2, it cannot involve implements such as a paddle or a belt and blows to a child’s head are not allowed. Teachers and faith-based groups praised the decision, saying the people who are responsible for raising children must have the leeway to decide when moderate physical discipline is required.


Conviction By Prior Impeachment? Did You Get The Title Right?

posted by Judge_Burke @ 14:40 PM
May 10, 2016

Anna Roberts (Seattle University School of Law) has posted Conviction by Prior Impeachment (Boston University Law Review, (2016), Forthcoming) on SSRN.

Here is the abstract:

Impeaching the testimony of criminal defendants through the use of their prior convictions is a practice that is triply flawed: it relies on assumptions belied by data; it has devastating impacts on individual trials; and it contributes to many of the criminal justice system’s most urgent pathologies. Yet critiques are often paired with resignation. Abolition is thought too ambitious, because this practice is widespread, long-standing, and beloved by prosecutors. Widespread does not mean universal, however, and a careful focus on the states that have abolished this practice reveals arguments that overcame prosecutorial resistance and that intervening developments have strengthened. It also reveals decades of experience, from which both inspiration and best practices can be drawn.


Should You Punish the Poor?

posted by Judge_Burke @ 14:30 PM
May 9, 2016

The Washington Post recently had an interesting story about an opinion of the Supreme Court of Italy.  It begins:

Who can blame a homeless man for stealing a small amount of food from a grocery store? Certainly not Italy’s Supreme Court.

Five years ago, Ukrainian national Roman Ostriakov was homeless in Genoa when he was caught stealing cheese and sausage worth less than $5, the Telegraph reports. He was fined $115 and sentenced to six months in jail in 2015, a sentence that he appealed. On Monday, the Italian Supreme Court ruled in his favor.

“The condition of the accused and the circumstances in which he obtained the merchandise show that he had taken the little amount of food he needed to overcome his immediate and essential requirement for nourishment,” it ruled. “People should not be punished if, forced by need, they steal small quantities of food in order to meet the basic requirement of feeding themselves.”

The Italian newspaper La Stampa praised the verdict in a front-page editorial.

“The court’s decision reminds us all that in a civilised country no one should be allowed to die of hunger,” it read.

Corriere Della Sera noted in an opinion piece that statistics show the ranks of Italy’s poor grow by 615 people daily and that it was “unthinkable that the law should not take note of reality,” the BBC reports. The piece also took issue with how long the judicial system took to arrive at its final decision.


The full story is available here.


You May Read this Post if You Click, “I agree”

posted by Judge_Burke @ 14:30 PM
May 5, 2016

Noah Feldman is a professor of constitutional and international law at Harvard University.  He wrote an interesting commentary about a recent Seventh Circuit decision. It says, in part:

When was the last time you actually read the terms of service before clicking “I agree” on a website? Unless your answer is “never,” I don’t believe you — and I don’t think it’s your fault, either. But the U.S. Court of Appeals for the 7th Circuit has a subtler view than mine. On March 25, it held that you’re not bound by a contract if it wasn’t made clear that you were supposed to read it. But if it is made clear, the contract binds you, whether you read it or not.

The facts of the case were pretty outrageous, as these things go. Gary Sgouros signed up online to get his credit score with TransUnion Corp. When he went to a car dealership armed with his good credit score, they laughed him off. His actual score was 100 points lower than TransUnion had claimed.

Sgouros sued, claiming to represent a class of similarly misled clients. TransUnion said that he couldn’t sue because he’d agreed to submit any disagreement to binding arbitration as part of the terms of service on its site.

The district court rejected TransUnion’s argument, and the 7th Circuit agreed. The basis for the appeals court’s holding was that TransUnion’s site never actually made Sgouros look at or agree to the arbitration agreement. Instead, the website referred to a “service agreement” and accompanied the reference with a paragraph that said nothing about arbitration. Next to the service agreement box, the words “Printable Version” appeared. If you clicked that, you got a 10-page document that included the arbitration promise — on page 8.

Given the borderline deceptive nature of the website, the 7th Circuit had no trouble concluding that Sgouros hadn’t signed a contract. But the important part of the opinion wasn’t the conclusion that Sgouros could go forward with his suit against TransUnion without arbitration.

What mattered was the court’s explanation of why checking the website’s service agreement box was inadequate to form a contract — because that in turn would indicate what sort of consent by Sgouros would have formed a binding contract.


Caroline Cooper on Drug Courts

posted by Judge_Burke @ 14:30 PM
May 4, 2016

There may well be no one who is nicer, more committed, or more insightful about drug courts than Caroline Cooper (American University – School of Public Affairs – Justice, Law & Society). She has posted Drug Courts – Just the Beginning: How to Get Other Areas of Public Policy in Sync? Addressing Continuing Collateral Consequences for Drug Offenders on SSRN.

Here is the abstract:

This article is an update to an earlier article, prepared in 2003, examining five areas of public policy in the U.S., unconnected to criminal justice, that imposed significant – and generally lifetime – sanctions on drug court graduates regardless of their successful completion of a drug court program and termination from criminal justice supervision. At that time, the extensive research corroborating the effectiveness of drug courts in reducing drug use, recidivism and promoting long term recovery was just beginning to be disseminated, along with scientific findings relating to the neurobiology of addiction, its effects on the brain and cognitive functioning – all confirming that drug use was a generally a symptom of a chronic disease of the brain – far more than a “behavioral” issue and/or moral failing. Given these extensive research findings, as well as over a decade of drug court experience, an update of this article was prepared in 2015, to document progress made in reducing these areas of stigma – come to be subsequently referred to as “collateral consequences” – in light of the tremendous growth of drug courts since the article was first published in 2003, both in the U.S. and abroad, the widely documented effectiveness of these programs in stemming continued drug use and crime, and the growing body of research documenting the neuro-biological and physiological aspects of the disease of addiction for which treatment has proven effective and incarceration in and of itself has been increasingly documented to be counter-effective. 

The expectation, therefore, was that progress in removing stigma associated with addiction would have been significant during this past decade. The results, however, were the opposite. While there has been some progress, it has been slow and spotty, and the situation in 2015 can be characterized by continued stigma – and a wide array of collateral consequences – imposed by multiple sectors of public policy on individuals who have successfully completed drug court programs and which, in many instances, extend for their lifetime. Not only do the major areas of stigma described in the 2003 article continue but, in addition, numerous additional “collateral consequences” that hadn’t formally surfaced in 2003 were identified. Despite the momentum of criminal justice reform underway, collateral consequences imposed by noncriminal justice sectors continues with only spotty signs of abatement.