Implicit Bias from The National Judicial College

posted by Judge_Burke @ 16:39 PM
June 25, 2018

Should judges be warning jurors about unconscious bias? Our poll says few are

Unconscious bias has been in the headlines since Starbucks closed all its stores nationwide for an afternoon late last month to conduct racial-bias education for employees.

The training came in response to a racial incident at a Starbucks in Philadelphia. A pair of African-American men were waiting for a business meeting and hadn’t purchased anything, which is a common scenario with patrons of all kinds at the coffee shops. The store’s manager asked them to leave and then called the police when they did not comply.

Our June Question of the Month asked judges if they do anything to alert jurors to unconscious or implicit bias before they render a verdict. Of the 338 judges who voted, 71 percent said they do not alert jurors to potential implicit bias.

As the preface to the poll question noted, some states, including California and Washington, require that juries be informed about implicit bias. And one judge shared the instructions that he himself issues to jurors.

Of the 125 respondents who posted comments (mostly anonymous), several said they don’t consider it necessary to talk about unconscious bias because they feel counsel often address it adequately in voir dire. Others seemed unsure how to bring up the topic with jurors.

Iowa District Court Judge Jeff Neary (Sioux City) said he starts by talking about overt bias before turning to the implicit or unconscious form.

“[I ask] folks from this area to raise their hands if they consider themselves Iowa Hawkeyes fans, Iowa State Cyclones fans or Nebraska Cornhusker fans. And then I use that show of hands—and the typical joking that takes place—to talk about how we feel about those who might not like a team we like or point out how we take sides in such contests and may generally feel or react to others who do not see things as we do.”

Several judges said that they would like to discuss unconscious bias but haven’t figured out how to do so. They worry about calling attention to the fact that a witness or a defendant may be subject to bias. They don’t want to plant a seed of bias in jurors’ minds

“I address [bias] during jury orientation [but] not as thoroughly as I would like to,” wrote one judge, who self-identified as an African American from a southern state. “I don’t get the sense that jurors are as open to me addressing this with them.”

Another judge cited a study that, according to the judge, found that “alerting” jurors to their unconscious or implicit biases can exacerbate them.

The overwhelming weight of research shows the opposite, according to Kimberly Papillon, a judicial professor who has taught about neuroscience in decision-making for the NJC for 10 years. She said numerous studies show brain reactions change and fairness increases when people are alerted to bias.

“This is particularly true when people make decisions that will be scrutinized in public, like jury verdicts,” she said.



Watch What We Do Not What We Say?

posted by Judge_Burke @ 19:58 PM
June 15, 2018

There are a lot of judges who believe that the Second Amendment confers an individual  right to bear arms. There are judges like Justice Thomas who believe that a strict scrutiny test applies to any gun restrictions. And then there are a whole lot of judges who simply do not see courthouses as the right places for people to be carrying loaded firearms. So we put up metal detectors and keep the guns out. Seems simple enough. Well, perhaps not in Mississippi:

Last week, the Mississippi Supreme Court ruled that a lower court had unconstitutionally banned residents with enhanced concealed-carry licenses from bringing their weapons into courthouses.

A 2011 amendment allowed “enhanced concealed-carry licensees the privilege of carrying a concealed firearm in the courthouses of this state, save for courtrooms, which the Legislature left within the province of judges.” However, local judges “issued a court order prohibiting enhanced concealed carry licensees from possessing a firearm in and around courthouse buildings.”

The Mississippi Supreme Court found that “The Mississippi Constitution vests only the Legislature with the authority to regulate or forbid carrying concealed weapons. The orders at issue usurp that power.” While the court acknowledged that the judges’ fear for their safety was “well-founded,” the majority concluded that the judges’ “personal fears and opinions do not trump, and cannot negate, constitutional guarantees.”

Two justices dissented, finding the ban constitutional, and two justices dissented in part, finding that a more narrow order could be constitutional.



The California Judicial Election Results

posted by Judge_Burke @ 14:30 PM
June 8, 2018

Judge Aaron Persky, whose 15-year judicial career will be publicly defined by how he handled an alcohol-fueled sexual assault case, was removed from the bench by Santa Clara County .

With 75 percent of precincts reporting, nearly 60 percent of voters supported Persky’s recall. He will be replaced by Assistant District Attorney Cindy Seeley Hendrickson, who was outpacing San Jose civil litigator Angela Storey, 70 percent to 30 percent.

“Tonight’s results mirror what we heard while we were out talking to voters,” Michele Dauber, who led the recall campaign, said in an email. “We are thankful for our supporters and every person who donated their time.”

The election results close the book on a divisive campaign that raised difficult questions about how the judicial system handles violence against women, how the public views judicial decision-making and independence and how judges under political fire should respond. But the vote could continue to resonate, said retired Santa Clara County Superior Court Judge Leonard Edwards.

“This will put a chill in any judge when considering a sentence in the criminal courts,” Edwards said, “and I suppose that’s what the recall supporters wanted.”

Persky became the first judge recalled in California since 1932, when three Los Angeles County judges were ousted after the local bar association accused of them of graft.


Fines & Fees Justice Center

posted by Judge_Burke @ 14:30 PM
June 7, 2018

Among the most committed reformers of the system of justice is former California Judge Lisa Foster. After she left the bench, Judge Foster served as the Director of the Office for Access to Justice at the United States Department of Justice. She is now a driving force of an important initiative we all ought to be concerned about. 

From Fines & Fees Justice Center (FFJC):

We are pleased to announce the launch of the Fines & Fees Justice Center (FFJC) – a national center for advocacy, information and collaboration.

FFJC is committed to ending the unjust and harmful imposition and enforcement of fines and fees in the justice system.  Our mission is to create a justice system that treats individually fairly, ensures public safety and community prosperity, and is funded fully and equitably. 

To accomplish these goals, FFJC is involved in state-based advocacy, piloting reform strategies to bring about comprehensive change.  In New York and Florida, FFJC is working with community partners and justice system stakeholders to pursue court, legislative, and policy changes, creating demonstration sites for holistic reform. In addition, FFJC consults with other jurisdictions, individuals and organizations interested in pursuing reform, directing them to resources, partners and practices that can strengthen their work. And when we find particularly promising models for reform, we seek out jurisdictions to pilot and evaluate them.

FFJC is also creating a user-friendly national clearinghouse for information, research and best practices. The Clearinghouse – still under construction – will collect and digest all of the research, pilot projects, litigation, legislation, court rule changes, and media related to fines and fees in the United States. Our goal is to translate this information into actionable guidance and tools that can be used by policy makers, advocates, courts and community organizations interested in reform. We want to include your work in our Clearinghouse. We will likely be contacting many of you in the weeks ahead, but, please, send us any reports, descriptions of pilot programs, court rule changes, or new legislation.

Many of you know us and know that we have been working on the issues surrounding fines and fees for many years – Lisa from the United States Department of Justice and Joanna from the Laura and John Arnold Foundation.  Together, we want to continue the work that we started – helping communities and justice system stakeholders achieve comprehensive and durable reform.

FFJC is a project of the New Venture Fund and is guided by an Advisory Board composed of nationally-recognized experts in their field.

We hope we can be of service to you as you consider fines and fees reform in your jurisdiction. FFJC has offices in New York and Washington, D.C. Please contact or if we can be of any assistance. Additionally, you can follow FFJC on Twitter or visit our website for news and commentary around fines and fees.

Kindest regards,

Joanna Weiss and Lisa Foster


There are many judges in the state court community who have a significant impact on their state. There are some who not only have an impact on their state, but also an impact nationwide.

Justice Shirley Abrahamson is one of those unique judges who had impact everywhere. She has been a mentor to judges, a role model to lawyers and judges, and an intellectual leader…and–for those who know her–she is a genuinely nice person.

Shirley Abrahamson won’t seek another term, thus setting up a race for Wisconsin’s high court seat.

Read the article here.




Be Careful With These Tools

posted by Judge_Burke @ 14:30 PM
May 31, 2018

Erin Collins (University of Richmond School of Law) has posted Punishing Risk (Georgetown Law Journal, Forthcoming) on SSRN.

Here is the abstract:

Actuarial recidivism risk assessments – or statistical predictions of the likelihood of future criminal behavior – drive a number of core criminal justice decisions, including where to police, who to release on bail, and how to manage correctional institutions. Recently, this predictive approach to criminal justice has entered a new arena: sentencing. Actuarial sentencing has quickly gained a number of prominent supporters and is being implemented across the country. This enthusiasm is understandable. Its proponents promise that actuarial data will refine sentencing decisions, increase rehabilitation, and reduce reliance on incarceration. 

And yet, in the rush to embrace actuarial sentencing, scholars and policy makers have overlooked a crucial point: actuarial risk assessment tools are not intended for use at sentencing.

In fact, their creators explicitly warn that these tools were not designed to aid decisions about the length of a sentence or whether to incarcerate someone. And yet, that is precisely how those who endorse actuarial sentencing – including the American Law Institute in the recently revised Model Penal Code for Sentencing – suggest they should be used. 

Actuarial sentencing is, in short, an unintended, “off-label” application of actuarial risk information. This Article re-examines the promises of actuarial sentencing in light of this observation and argues that it may cause a number of equally unintended and detrimental consequences. Specifically, it contends that this practice distorts, rather than refines, sentencing decisions. Moreover, it may increase reliance on incarceration – and for reasons that undermine the fairness and integrity of the criminal justice system.


Is There More to this Decision?

posted by Judge_Burke @ 15:30 PM
May 30, 2018

The United States Constitution does not permit a warrantless police search of a vehicle parked in a driveway next to the owner’s house, the Supreme Court ruled Monday. The court rejected an argument by Virginia police who claimed their search of a motorcycle believed to be stolen fell under the “automobile exception” to the Fourth Amendment, which allows broader searches of vehicles stopped along the side of the road.

Read the decision: U.S. SUPREME COURT

Read an analysis of the decision: SCOTUSBLOG 

Justice Clarence Thomas wrote a separate opinion in which he agreed with the majority’s resolution of the Fourth Amendment question. But, Thomas stressed that the case was before the justices because, if Collins is correct and his Fourth Amendment rights were violated, the state courts would have to apply the exclusionary rule, which prohibits the government from using evidence obtained in violation of the Constitution, and “potentially suppress the incriminating evidence against him.”

Thomas expressed “serious doubts” about the Supreme Court’s authority to require states to follow the exclusionary rule, which is “not rooted in the Constitution or a federal statute,” and he urged the court to take up that question. The exclusionary rule prevents the government from using most evidence gathered in violation of the United States Constitution. The decision in Mapp v. Ohio established that the exclusionary rule applies to evidence gained from an unreasonable search or seizure in violation of the Fourth Amendment. While the exclusionary rule was once the focus of calls to eliminate it, most of that effort had come to a halt up until Justice Thomas’s most recent opinion.


It is Just a Misdemeanor

posted by Judge_Burke @ 18:33 PM
May 25, 2018

Anyone who has been around the criminal justice system even briefly has heard, “It is just a misdemeanor!” Thinking seriously about misdemeanor offenses happens. We are concerned about domestic violence. We are concerned about drunk driving. But, an argument can be made that too often we trivialize misdemeanors.

Eisha Jain (University of North Carolina School of Law) has posted Proportionality and Other Misdemeanor Myths (98 Boston University Law Review 953 (2018)) on SSRN.

Here is the abstract:

Criminal law theory is laden with faulty assumptions about misdemeanors. This Symposium Article summarizes five key mistaken assumptions — “misdemeanor myths” — that distort misdemeanor processing: (1) the stakes are small, (2) criminal procedure matters, (3) prosecutors maximize sentences, (4) pleas are informed, and (5) the sentence matters most. In addition, it examines emerging relief efforts, such as expungements, that offer the promise of reducing disproportionate penalties. It argues that while certain initiatives hold the promise of reform, they are too often laden with onerous procedural and substantive hurdles. As a result, they offer little more than palliative relief to the rare few. They perpetrate the procedural hassle that characterizes misdemeanor courts, rather than offering relief from it. Conceptually, this approach gets it backwards. It gives the misdemeanor system far more credit than is warranted in leading to outcomes that do not offend basic principles of proportionality and procedural fairness. This Article argues that relief efforts should focus on alleviating the well-documented systemic failures of the misdemeanor system, rather than assuming that the state has a legitimate penal rationale for imposing collateral penalties in the first place.


Of Course Fingerprints are Reliable (Or are They?)

posted by Judge_Burke @ 14:30 PM
May 23, 2018

Simon A. Cole and Barry Scheck (University of California, Irvine – Department of Criminology, Law and Society and Professor of Law, Cardozo Law School, Co-Director, Innocence Project) have posted Appendix to ‘Fingerprints and Miscarriages of Justice: ‘Other’ Types of Error and a Post-Conviction Right to Database Searching,’ 81 Albany Law Review 101 (2017/2018) on SSRN.

Here is the abstract:

This Appendix gives one case example of each fingerprint error type discussed in Table 3 of the Article “Fingerprints and Miscarriages of Justice: ‘Other’ Types of Error and A Post-Conviction Right to Database Searching,” for which we know of an actual case. Cases were selected for recentness, novelty (not widely discussed elsewhere in the literature), and the degree to which they illustrate the problem we are discussing. In footnotes, we also list the other known cases of this error type.


An Interesting Article on Forensic Science

posted by Judge_Burke @ 14:30 PM
May 22, 2018

Jane Campbell Moriarty (Duquesne University – School of Law) has posted Deceptively Simple: Framing, Intuition and Judicial Gatekeeping of Forensic Feature-Comparison Methods Evidence (Fordham Law Review, Vol. 86, No. 4, 2018) on SSRN.

Here is the abstract:

For many decades, prosecutors have relied on feature-comparison methods (FCM) of forensic science evidence, including hair, fingerprints, toolmarks, handwriting, and bitemarks. Since the late 1980s, scholars and practitioners have raised serious questions about the reliability and error rates of such evidence. Two national bodies have published serious criticism of FCM evidence: the 2009 Committee of the National Research Council of the National Academy of Sciences; and the 2016 President’s Council of Advisors on Science and Technology. Despite these concerns and proof from the Innocence Project data that poor quality forensic science evidence has been a substantial component in wrongful convictions, courts continue to admit FCM evidence routinely and with little analysis, generally avoiding application of the Daubert factors related to reliability.

This article questions why courts are unreceptive to challenges about the reliability of such evidence and suggests that judges perceive feature-comparison evidence as fairly straightforward and intuitively accurate.

As such, courts often unknowingly rely upon heuristic approaches to the evidence — that is, cognitive shortcuts to manage complexity. By using these shortcuts, rather than rigorously evaluating reliability, decisions may inadvertently incorporate cognitive biases, including belief perseverance, confirmation bias, and assumptions of simplicity. If judges can appreciate that feature-comparison “matching” is a complex, multifaceted procedure, they might become more willing to engage in a deeper, science-based review of the evidence and better understand its shortcomings and limitations.