Anchoring is an Issue All Thoughtful Judges Need to Be Aware Of

posted by Judge_Burke @ 14:27 PM
October 21, 2014

Anchoring is an issue which all thoughtful judges need to be aware of.  Mark W. Bennett has posted Confronting Cognitive ‘Anchoring Effect’ and ‘Blind Spot’ Biases in Federal Sentencing: A Modest Solution for Reforming a Fundamental Flaw (Journal of Criminal Law and Criminology, Vol. 104, No. 3, p. 489, 2014) on SSRN.  Although the article is focused upon federal sentencing practices, it contains lessons for all judges.

Here is the abstract:

Cognitive “anchoring effect” bias, especially related to numbers, like sentencing guidelines ranges, is widely recognized in cognitive psychology as an extremely robust and powerful heuristic. It is a cognitive shortcut that has a strong tendency to undermine judgments by “anchoring” a judgment to an earlier disclosed number, the anchor. Numerous studies prove anchoring bias produces systematic errors in judgment in wide-ranging circumstances, including judgments by experts — doctors, lawyers, real estate agents, psychologists, and auditors — as well as a variety of decisions by foreign and American federal and state judges. The anchoring effect occurs even when the anchor is incomplete, inaccurate, irrelevant, implausible, or even random. Roughly corresponding in time with the developing understanding of the anchoring effect, federal sentencing has undergone a revolution from judges having virtually unlimited discretion, to virtually no discretion, and back to considerable discretion, as the Federal Sentencing Guidelines went from mandatory to advisory in a single monumental U.S. Supreme Court decision, United States v. Booker, 543 U.S. 220 (2005). Surprisingly, since judges were granted much greater discretion in Booker, the length and severity of federal sentences, for the most part, has not changed. This remains true despite long-standing, persistent, and widespread dissatisfaction among federal district court judges with the Guidelines and the length of sentences. This Article argues that this is because judges’ sentences are subconsciously anchored by the calculated Guidelines range.


Ebola and Court Administration

posted by Judge_Burke @ 14:22 PM
October 20, 2014

Ebola Response:

A Practical Approach for Court

By Gregory J. Cowan


With Ebola in the news, judges, court administrators, and other court officials may be considering how best to respond.  Provided below are three main issues judges, court administrators, and other court officials may wish to consider.  Also, court specific emergency planning implications are provided for each of these three main issues.


Issue One: Use Your Court’s All-Hazards Emergency Planning

Courts should consider responding to the Ebola threat within their existing all-hazard emergency management planning efforts.  These planning efforts should involve 1) critical incident/evacuation plans, 2) continuity of operations plans (COOP), and 3) IT disaster recovery plans.  In developing these three plans, at least seven key elements of court emergency management should have been considered or addressed.  These seven key elements are:

  1. ​Address leadership issues;
  2. Dedicate court staff to emergency management issues;
  3. Build and strengthen collaborative relationships with individuals within the emergency management community;
  4. Develop redundant communications;
  5. Develop a self-sufficient workforce;
  6. Develop a written version of each of the three plans; and
  7. Test, maintain, and exercise each of the three plans.

Hopefully, some level of this type of all-hazard emergency planning has occurred within the court.  If so, the response to the Ebola incident should fall within the context of this all-hazards planning.

Additionally, the National Center for State Courts (NCSC) has materials as well as education and consulting services available to assist.


Issue Two: Consider the Unique Nature of Health Emergencies on the Courts

Judges, court administrators, and other court officials should consider the unique issues associated with an event like Ebola or other health emergency (i.e., pandemic influenza.)  Below are four unique aspects of these health related emergency events with planning implications provided for each.

  1. ​Unlike many emergency events, health emergencies are not necessarily short-term, singular events.  Rather, health emergencies may occur over a longer timeframe or may come in multiple “waves” of varying duration and varying virulence.  Among other planning adjustments, extra attention should be paid to the impact on staff created by the uncertainty of the nature of the event itself. 
  2. The duration of the event may be longer than can be addressed within the 30 day event horizon standard for COOP.  Therefore, COOP activation for such an event may need to be extended perhaps to as long as 90 days.
  3. The impact of these events is primarily on people not physical property or technical infrastructure.  Therefore, rather than considering a move to an alternate facility as required in COOP, planning may need to consider how to perform the mission essential functions in an environment requiring limited or no face-to-face contact.
  4. Unique legal issues (i.e., quarantine/isolation issues, issues of contaminated waste, etc.) outside of the standard mission essential functions may be required.  Numerous courts have developed bench books or other guides to assist in handling these issues.  Court emergency planning should include a familiarization and preparation to handle these legal matters. 

The NCSC has available and has produced a number of resources to educate and assist with the management of these unique health related emergency events.


Issue Three: Semper Gumby

In response to all emergency events, flexibility and stress management are a must.  It is impossible to remove the “emergency” from emergency management.  As stated by Dr. Bruce Ribner, an infectious disease specialist, “It doesn’t matter how much you plan. You’re going to be wrong half the time.”

Maintaining composure and systematically addressing issues under the existing court emergency management structure will go a long way to successfully responding and recovering from any emergency event.  This type of stability is especially necessary for an institution such as courts given our critical role of maintaining the rule of law.


This Issue Will Not (Nor Should It) Go Away

posted by Judge_Burke @ 14:00 PM
October 17, 2014

For the public, when they hear the jury acquits, the conclusion is that is the end of it.  But, for those of us who are part of the criminal justice system, we know that sometimes judges sentence based upon conduct that was not proven beyond a reasonable doubt (acquitted conduct).

Lyle Denniston has this post at SCOTUSblog:  “The jury acquits, the judge still sentences. Can that be?“  His piece is worth reading.



There may be few issues as troublesome as end of life decisions.

There are people who have deeply held moral beliefs that any attempt to end life is immoral. There are a large number of people who are very comfortable with “do not resuscitate” instructions. And, now we have an interesting case pending before the Canadian Supreme Court on physician-assisted death.

There are two informative and thought-provoking articles about the case in The Globe and Mail. The first can be found here. The second looks at components of what the case is or is not about, and can be found here.


Risk & Needs Assesment

posted by Judge_Burke @ 14:01 PM
October 15, 2014

Recently, Attorney General Holder attracted a lot of attention with a speech which raised his concern that perhaps the risk & needs assessment movement may not be a panacea.

Melissa Hamilton (University of Houston Law Center) has posted Risk and Needs Assessment: Constitutional and Ethical Challenges on SSRN.

Here is the abstract:

Across jurisdictions, the criminal justice system is enamored with the evidence-based practices movement. The idea is to utilize the best scientific data to identify and classify individuals based on their potential future risk of reoffending, and then to manage offender populations according to risk and criminogenic needs. Risk-needs tools now inform a variety of criminal justice decisions, ranging from pre-trial outcomes, to sentencing, to post-conviction supervision. While evidence-based methodologies are widely exalted as representing best practices, constitutional and moral objections have been raised. Risk-needs tools incorporate a host of constitutionally and morally sensitive factors, such as demographic and other immutable characteristics. The constitutional analysis herein engages equal protection, prisoners’ rights, due process, and sentencing law.



Mark Osler is a well respected law professor at the University of St. Thomas School of Law. The issue of federal sentencing policy is, of course, quite important…but, the reality is the numbers are in the sentences imposed by state court judges. Even if you are not now (nor ever are going to be) a federal judge, this article is worth reading and thinking about.


A ‘Holocaust in Slow Motion?’ America’s Mass Incarceration and the Role of Discretion

Mark William Osler

University of St. Thomas – School of Law (Minnesota)

Mark W. Bennett

U.S. District Court (Northern District of Iowa)


7 DePaul Journal for Social Justice 117 (2014)
U of St. Thomas (Minnesota) Legal Studies Research Paper No. 14-30


Numbers don’t lie: America has suffered an explosion in imprisonment that has been fundamentally unrelated to actual crime levels. In this article, a federal District Court Judge and a former federal prosecutor examine the roots of this explosion with a focus on the discretion of Congress, the United States Sentencing Commission, federal prosecutors, and judges. This dark period may be in its twilight, though, and the authors conclude by describing specific actions each of these four groups could take to dismantle the cruel machinery of mass incarceration.



Supreme Court to Decide: First Amendment versus Cannons of Judicial Ethics

posted by Judge_Burke @ 14:00 PM
October 8, 2014

The Brennan Center Fair Courts e alert reports that The United States Supreme Court granted cert in the case Williams-Yulee v. Florida Bar.

The case deals with a Florida judicial canon that prevents candidates in judicial elections from personally soliciting campaign contributions. Lanell Williams-Yulee, a former Florida judicial candidate, challenged the rule after she was disciplined for signing a mass-mail fundraising letter while running for office.

According to Greg Stohr of Bloomberg News, “Williams-Yulee says the law goes too far by barring candidates from asking for money in speeches and mass mailings. Those solicitations ‘present little or no risk of undue pressure or the appearance of a quid pro quo,’ her lawyers argued in the appeal.” But Bert Brandenburg, executive director of Justice at Stake, said “[a]s partisan and special interest spending in judicial elections skyrockets, the Supreme Court has an important opportunity to help rebuild public trust in elected courts — and strike a blow at a growing perception of judges as politicians in robes.”

Of the 39 states that hold judicial elections, 30 have rules in place preventing judicial candidates from personally soliciting contributions.


Federal Judicial Conduct & Disability Rules

posted by Judge_Burke @ 14:05 PM
October 7, 2014

The federal judiciary is revamping its judicial conduct and disability rules, and the proposed reforms tackle a tricky subject:  How to treat allegations that a judge is no longer capable of performing her duties.

The proposed rules, which are now on the table for public comment, give a special committee of judges investigating a complaint the power to “consult appropriate experts or other professionals if it determines that such a consultation is warranted.”

For example, the proposal says, if the committee believes a judge may be unable to do her job because of mental or physical disability, it may ask the judge to undergo a medical or psychological examination and require the judge to share the results. The committee (which is appointed by a chief judge) may also ask for prior medical records.

If a judge refuses, the proposed rules say the committee can take the judge’s cooperation into account in its investigation. The proposed rules also suggest that a failure to cooperate could amount to misconduct itself, given that the Code of Conduct for U.S. Judges emphasizes the need to maintain public confidence in the judiciary.

In other words, the proposal leaves little room for a judge to refuse to undergo medical testing or to withhold medical records from a committee investigating her.

Federal judges are appointed for life. Slate and ProPublica reported in 2011 that about 12% of the sitting federal district and appellate judges were 80 years or older. At the time, 11 federal judges older than 90 were hearing cases. Together, the number of judges in those age groups had doubled in the 20 years prior.

A hearing on the proposed rules is scheduled for Oct. 30 in Washington, D.C.


Justice Ginsburg Comments on Abortion Law Stir Recusal Debate

posted by Judge_Burke @ 14:00 PM
October 6, 2014

From The Wall Street Journal Law Blog:

Comments made by Justice Ruth Bader Ginsburg in a magazine interview have reignited a long-simmering ethical debate confronting the Supreme Court over when a justice ought to sit out a case.

In a New Republic interview published Sunday, Justice Ruth Bader Ginsburg was asked by legal scholar Jeffrey Rosen if state lawmakers could be trusted to safeguard abortion rights.

“How could you trust legislatures in view of the restrictions states are imposing?” Justice Ginsburg replied. “Think of the Texas legislation that would put most clinics out of business. The courts can’t be trusted either.”

It’s not surprising that the liberal Justice Ginsburg would have a dim view of the Texas law (House Bill 2), which requires abortion physicians to obtain admitting privileges at a local hospital, a standard that could shutter many clinics in the state. But what raised eyebrows is that Justice Ginsburg openly talked about her views on an issue under review by an appellate court and potentially headed her way.

South Texas College of Law professor Josh Blackman thought the justice crossed a line. “It seems that Justice Ginsburg has made up her mind about this law [and believes that] it is not a health measure, but a law to put clinics out of business,” he wrote on his blog.



Linda Greehouse on Chief Justice Roberts

posted by Judge_Burke @ 14:33 PM
October 3, 2014

With Chief Justice John Roberts about to begin his tenth Term at the Court, Linda Greenhouse devotes her column for The New York Times to considering “the future: the next nine years. What kind of Supreme Court will John Roberts find himself presiding over, and how will he respond to what is highly likely to be a change, in one direction or the other, from the knife edge on which his current majority rests?”

The column begins:

Chief Justice John G. Roberts Jr. begins his 10th Supreme Court term next Monday. That’s a fact all but guaranteed to startle those of us who remember as if it were yesterday the weird and intense Supreme Court summer of 2005, bracketed by Justice Sandra Day O’Connor’s unexpected retirement announcement and, two months later, Chief Justice William H. Rehnquist’s death at 80 from thyroid cancer. Those events propelled John Roberts, originally President George W. Bush’s choice for the O’Connor vacancy, to the center chair to which the president quickly switched the nomination. At 50, he was the youngest chief justice since John Marshall. Of today’s justices, only Elena Kagan, at 54, is his junior.

It has been an eventful nine terms for the court and its chief. Samuel A. Alito Jr., Justice O’Connor’s eventual replacement, is well to her right and has provided Chief Justice Roberts with a reliable if narrow majority for the court’s steady regression on race and its deregulatory hijacking of the First Amendment. Along with ever-expanding accommodation of religious interests, these are the areas in which the Roberts court has made its increasingly predictable mark.

Anniversaries are a typical time for this kind of stock-taking, but what’s most interesting about this anniversary is not the past, but the future:  the next nine years.