Mae C. Quinn (Washington University in Saint Louis – School of Law) has posted In Loco Juvenile Justice: Minors in Munis, Cash from Kids, and Adolescent Pro Se Advocacy – Ferguson and Beyond on SSRN.

Here is the abstract:

In recent years many have challenged the imposition of lengthy adult prison terms for kids convicted of serious crimes. Given their special vulnerabilities, advocates argue young felony offenders should have their cases handled in our country’s specialized juvenile courts where they might receive age-appropriate interventions intended to support redirection and development. However, these conversations have largely overlooked another set of legal venues and their juvenile justice implications – those adjudicating low-level offenses such as local traffic and ordinance violations. Thus, there has been little scholarly, judicial, or advocacy address of the phenomenon of prosecuting minors in municipal courts.

This essay calls for greater attention to the issue. It does so in the wake of recent events in Ferguson, Missouri which have generated wide-spread agreement that local courts need to change the ways they process, prosecute, and punish low-level ordinance violations. Indeed, as the nation has now learned, aggressive pursuit of fines and court fees through traffic cases and related quality-of-life actions are one of the most troubling aspects of life for many poor residents in St. Louis and beyond.

Yet, juveniles – youth under the age of eighteen – are a population whose experiences have received almost no attention in the course of these critiques and recent calls for reform.

This article fills that gap by opposing prosecution of minors in municipal courts – venues largely focused on financial enrichment of the localities they serve. It explains that municipal courts frequently deploy localized punitive practices against children that work to displace state and federal standards intended to protect them from harm, including taking cash from kids. Thus it urges rejection of in loco juvenile justice practices and instead argues youth – as a matter of common sense and constitutional doctrine – should have a right to juvenile court as venue of first resort.


Avoiding Judicial Burnout

posted by Judge_Burke @ 14:30 PM
July 23, 2015

The ABA Journal recently had an article about lawyer burnout which certainly has some applicability to judges:

Two character traits—perfectionism and pessimism—are prevalent among lawyers and may make them prone to anxiety, according to Gayle Victor, who worked as a consumer debt attorney for 25 years before becoming a social worker. “Perfectionism helps lawyers succeed in practice because the profession is excessively detail-oriented. In the Johns Hopkins study, optimism outperformed pessimism—except in the legal profession, because lawyers are hired to always look out for what can go wrong.” Stressed-out lawyers account for 75 percent of Victor’s practice, Care for Lawyers, which is based in Evanston, Illinois.

Taken to the extreme, perfectionism transforms into a feeling that nothing is good enough. “Attorneys develop an overdeveloped sense of control, so if things don’t go as planned, they blame themselves. They think they didn’t work hard enough or they were careless,” explains Tyger Latham, a Washington, D.C.-based psychologist who treats many lawyers and law students. “Paid worriers, lawyers are expected to predict the future, to anticipate threats and guard against anything that could arise. So they learn to see problems everywhere, even when they don’t exist. And they start to perceive threats as if they’re life-or-death matters. That’s the very definition of anxiety.”


The full article and – more importantly – some suggested solutions can be found here.


Rethinking How We Allow the Impeachment of Defendants

posted by Judge_Burke @ 14:30 PM
July 22, 2015

Anna Roberts (Seattle University School of Law) has posted Reclaiming the Importance of the Defendant’s Testimony (University of Chicago Law Review, Vol. 83, 2016) on SSRN.

Here is the abstract:

Implicit courtroom stereotypes are an urgent problem. When, as is disproportionately the case, trial defendants are African-American, they are vulnerable to implicit fact finder stereotypes that threaten the presumption of innocence: unconscious associations linking the defendants with violence, weaponry, and guilt. Implicit social cognition reveals that one valuable tool in combating this threat is individuating information — information that, through methods such as defendant testimony, brings an individual to unique life.

Yet current case law frequently chills defendant testimony by permitting impeachment by prior conviction. Courts determining whether criminal defendants should be impeached by their prior convictions use a multi-factor test, of which one factor is “the importance of the defendant’s testimony.” This factor was designed to prevent defendant testimony from being chilled: if the testimony was important, then impeachment was to be avoided. Now, courts often invert the factor’s meaning: they find that if the defendant’s testimony is important, the government should be able to impeach it. The distortion of this factor means not only that impeachment is typically permitted, and defendants frequently silenced, but also that a valuable opportunity to tackle courtroom bias is lost.

This Article proposes that the “importance of the defendant’s testimony” factor should be reclaimed as a means for defendants to argue that the individuating information that their testimony can offer militates against permitting impeachment. Where the defendant’s race risks triggering stereotypes that threaten the presumption of innocence, individuation represents a crucial part of the struggle for a fair trial.


Giving people a second chance seems obvious to some and to others quite contrary. Judges occasionally expunge records, but in an information age it is questionable whether anything can really be expunged. Moreover there are judicial leaders who advocate giving people a second chance – and yet the hiring policies of the judiciary are often not a model for employers willing to give people the second chance judges encourage the private sector to give individuals. Forgiveness is, in short, a challenge.

Jenny Roberts (American University, Washington College of Law) has posted Expunging America’s Rap Sheet in the Information Age (Wisconsin Law Review, Vol. 2, No. 321, 2015) on SSRN.

Here is the abstract:

As the Wall Street Journal recently put it, “America has a rap sheet.” Today, between 70 and 100 million people in the United States have a criminal arrest or conviction record, and anyone — including employers, landlords, and data collection companies — can easily access these records on line. At the same time, collateral consequences of even the most minor offenses have increased exponentially, affecting employment, housing, parenting, and just about every other aspect of daily life. The convergence of mass criminalization, ubiquitous criminal records, and pervasive collateral consequences is a major factor in the criminal justice system’s troubling racial and economic disparities.

States are reacting to the criminal records crisis in different ways, with many focusing on expanding record sealing or expungement laws that currently range widely in the relief offered. The time has come for a well-tailored response to mass criminalization and collateral consequences in the information age.

Sealing and expungement laws must be part of a multi-faceted approach to alleviating harmful consequences of a criminal record. The goal of limiting access to and use of relevant criminal records to those with a legitimate need to know is best advanced through focused legislative reform.

This Article describes why well-crafted sealing and expungement laws matter, responds to the major moral and practical arguments against such laws, and situates sealing and expungement as part of a comprehensive scheme for relief from a criminal record. Reforms might include regulating data brokers to ensure that sealed or expunged records are removed from their databases, banning employers from asking about arrests not ending in conviction or expunged convictions in the absence of a statutory mandate to do so, and offering employers who comply with such rules immunity from certain negligent hiring lawsuits.





Wisdom from Judge Alex Kozinkski

posted by Judge_Burke @ 14:30 PM
July 20, 2015

The starting and ending point is that the vast majority of prosecutors in the federal and states courts are dedicated and often over worked public servants. But, there is little doubt that the adversary system of justice has brought out the worst of people occasionally

Brady v. Maryland is nearly fifty years old yet there remain far too many instances of “Brady non-compliance.” Appellate courts find prosecutorial error and simultaneously say it was harmless error. Too often there is more discussion in opinions about why the error is harmless, and not enough discussion about why the prosecutorial behavior is wrong and should not be repeated.

It is in that context that the WSJLaw blog recently had an interesting piece:

If you could look beneath the blindfold worn by Lady Justice, would her eyes be closed? One of the nation’s most influential judges suggests she would be giving a wink to prosecutors seated across from the defendant.

In the latest issue of Georgetown Law Journal, Judge Alex Kozinski of the Ninth U.S. Circuit Court of Appeals turns a critical gaze toward America’s criminal justice system. It’s a long piece — part diagnosis of ailments and part treatment — with a broad sweep. But one of its major themes is prosecutorial advantage, both in federal and state courtrooms.

“They say that any prosecutor worth his salt can get a grand jury to indict a ham sandwich. It may be that a decent prosecutor could get a petit jury to convict a eunuch of rape,” writes Judge Kozinski.

Among his specific concerns is what he sees is a reluctance on the part of judges to blow the whistle on prosecutorial abuse:

Defense lawyers who are found to have been ineffective regularly find their names plastered into judicial opinions, yet judges seem strangely reluctant to name names when it comes to misbehaving prosecutors. Indeed, judges seem reluctant to even suspect prosecutors of improper behavior, as if they were somehow beyond suspicion….Naming names and taking prosecutors to task for misbehavior can have magical qualities in assuring compliance with constitutional rights.

If judges have reason to believe that witnesses, especially police officers or government informants, testify falsely, they must refer the matter for prosecution. If they become aware of widespread misconduct in the investigation and prosecution of criminal cases, a referral to the U.S. Department of Justice for a civil rights violation might well be appropriate.



Trouble in Kansas

posted by Judge_Burke @ 14:30 PM
July 17, 2015

The struggle for fair courts continues in Kansas.  In June, Gov. Sam Brownback (R) signed a bill that could defund the entire Kansas judiciary.  Last week, Larry T. Solomon, the chief judge for Kansas’ Thirtieth Judicial District, filed a brief threatening to challenge the controversial budget bill, arguing that intimidating the courts erodes public confidence in an independent and impartial judiciary. The Brennan Center is part of the legal team representing Judge Solomon.


Privacy Rights

posted by Judge_Burke @ 14:30 PM
July 16, 2015

Alan Butler (Electronic Privacy Information Center) has posted Get a Warrant: The Supreme Court’s New Course for Digital Privacy Rights after Riley v. California (Duke Journal of Constitutional Law & Public Policy, Vol. 10, 2015) on SSRN.

Here is the abstract:

The Roberts Court will likely be remembered for its decision to uphold the Affordable Care Act, its same-sex marriage-rulings, and its decisions in First Amendment and corporate-speech cases; but this Court should also be remembered for ushering in the era of digital Fourth Amendment rights. The Court has not only addressed how Fourth Amendment standards will apply to changing communications technologies, it has also gone out of its way to learn and understand how new technologies will affect the balance of power between the government and citizens. We have come a long way from Chief Justice Roberts’ question during oral argument in City of Ontario, California v. Quon: “[M]aybe everyone else knows this, but what is the difference between a pager and e-mail?”

In Riley v. California the Court answered — in a unanimous, nine- to-zero decision — the question of whether the police must obtain a warrant prior to searching an individual’s cell phone incident to a lawful arrest.

The Court said, simply and unequivocally, yes, “get a warrant.” Moreover, the Court directly addressed the impact of ever- expanding digital storage, the proliferation of smartphones, and the implications of encryption and access to cloud-based services. The opinion reflected the Court’s newfound understanding of modern communications technologies and their impact on civil rights. It stands as one of the strongest and clearest proclamations of Fourth Amendment rights in the Court’s history.

This article will explore the implications of the Riley decision on future Fourth Amendment cases, including cases challenging the bulk collection of telephone metadata. The article will review the background of Riley and the search-incident-to-arrest doctrine, and describe the new categorical rule adopted by the Court. The article will then consider how the Riley decision will affect lower court rulings on important Fourth Amendment issues: the scope of the search-incident-to-arrest and border-search exceptions, whether the collection of metadata and location information is a search, and the rules governing seizure of electronic records.


Chief Federal District Judge John Tunheim, Minnesota District Court Judge Jeanice Reding and I participated in an hour long round table discussion of racial inequality, sentencing reform and drug crimes, among other topics.

Here is the link.


Confidence in Major Public Institutions

posted by Judge_Burke @ 14:30 PM
July 10, 2015

Gallup put out its semi-regular ratings of the major public institutions. ..and the results are depressing, if not entirely shocking:

There are three institutions — the military, police and small businesses — that a majority of Americans have a “great deal” or “quite a lot” of confidence in. The other 12 institutions all inspire less confidence and, broadly, far less confidence than their historic averages in the Gallup data.

This paragraph, via Gallup’s Jeffrey Jones, is absolutely stunning:

Americans’ confidence in all institutions over the last two years has been the lowest since Gallup began systematic updates of a larger set of institutions in 1993. The average confidence rating of the 14 institutions asked about annually since 1993 — excluding small business, asked annually since 2007 — is 32% this year.

32 percent!

That means that just one in three people have a lot of confidence in 14 of the most bedrock institutions in our society from business to labor to TV to schools to, yes, Congress. (Congress is the institution that is running the farthest behind its historical norms. Don’t act surprised.)

What’s even more remarkable is that not one institution has risen upward in public estimation to fill the void left by the falling faith in others. In short: We’ve lost faith in the institutions that long served as a sort of societal safety net, but we haven’t replaced them with anything. We are, as a country, living without a net.

That feeling — that if you fall there will be nothing and no one to catch you — drives a deep societal anxiety about the country and its future. It’s why you have record numbers of people questioning whether the American dream can still be achieved and expressing deep (and long-held) pessimism about the where the country is headed.

And it’s why politicians — from President Obama on down — have struggled to articulate a positive vision for the future that doesn’t feel totally out of touch with the deep-seated pessimism and anxiety coursing through the electorate.

Here’s Obama from his 2014 State of the Union address:

What I believe unites the people of this nation, regardless of race or region or party, young or old, rich or poor, is the simple, profound belief in opportunity for all, the notion that if you work hard and take responsibility, you can get ahead in America.

Now, let’s face it:  That belief has suffered some serious blows. Over more than three decades, even before the Great Recession hit, massive shifts in technology and global competition had eliminated a lot of good, middle-class jobs and weakened the economic foundations that families depend on.

Today, after four years of economic growth, corporate profits and stock prices have rarely been higher, and those at the top have never done better. But average wages have barely budged. Inequality has deepened. Upward mobility has stalled. The cold, hard fact is that even in the midst of recovery, too many Americans are working more than ever just to get by; let alone to get ahead. And too many still aren’t working at all.

And Hillary Clinton from her presidential announcement:

“We’re standing again. But, we all know we’re not yet running the way America should.”

Here’s Marco Rubio’s take on the conundrum:

My parents achieved what came to be known as the American Dream. But now, too many Americans are starting to doubt whether achieving that dream is still possible: Hard working families living paycheck to paycheck, one unexpected expense away from disaster . . . Young Americans, unable to start a career, a business or a family, because they owe thousands in student loans for degrees that did not lead to jobs . . . And small business owners, left to struggle under the weight of more taxes, more regulations and more government.

Why is this happening in a country that for over two centuries has been defined by equality of opportunity?

Then there’s always the more direct approach favored by Donald Trump:

The challenge for any politician on the ballot in 2016 — particularly those running for president — is to find a way to give people something to latch onto amid all of the chaos that surrounds them. Judging from the Gallup numbers, we are in desperate need of something to believe in.


Racial Profiling in Canada

posted by Judge_Burke @ 15:10 PM
July 9, 2015

James Gill (Thompson Rivers University) has posted Permissibility of Colour and Racial Profiling (Western Journal of Legal Studies, Vol. 5, No. 3, 2015) on SSRN.

Here is the abstract:

Racial profiling in law enforcement is a contentious matter, particularly in light of U.S. police-citizen race tensions. The racial profiling debate has not been settled. Racial profiling proponents view it as a tool to effectively uncover criminal activity among certain racial groups. Critics find that racial profiling perpetuates racial stigmas and is largely inefficient as a policing tool. This article explores the ongoing debate and offers an overview of the Canadian judicial experience with racial profiling. The author proposes a middle-ground solution where racial profiling may be used under certain constraints imposed on law enforcement. The author suggests that the Crown provide justificatory evidence for the use of racial profiling when it is raised as a defence by the accused.