Do We Need a Blue Collar Supreme Court Justice?

posted by Judge_Burke @ 16:44 PM
December 19, 2014

The Fair Courts E- Alert reports,

In an article for Big Think, Steven Mazie wonders if the Supreme Court is too privileged to understand the average American worker. Mazie cites to a recent case in which the Court unanimously ruled that warehouse workers at a temp agency contracting with did not need to be paid for the searches they were required to endure at the end of each work day. These searches, purportedly implemented to prevent theft, can take up to two and a half hours per week. “With their sterling legal credentials and cloistered path to the bench, none of the justices have had much of a chance to live the life of an average American worker,” writes Mazie. “Justice Sotomayor and Justice Thomas both had tough upbringings, but their professional careers have not veered into blue collar territory. None of the justices have spent time working in factories or warehouses or toiling in low-paying jobs.” He goes on to say, “none of them have had to spend up to 10 hours a month emptying their pockets and walking through security screenings at work. If any of the justices had such an experience under their belt, maybe some would have seen this case differently.”



Don’t Believe Only Washington DC Can Enact Strange Laws

posted by Judge_Burke @ 15:00 PM
December 18, 2014

In the U.K., a person can be cited for impersonating a ghost:

Judge Fines Man for Imitating Ghost in Graveyard

by Brian Abrams, Deathandtaxes


A new study claims that,

The explosion in spending on television attack advertisements in state supreme court elections accelerated by the Citizens United decision has made courts less likely to rule in favor of defendants in criminal appeals. State supreme court justices, already the targets of sensationalist ads labeling them “soft on crime,” are under increasing pressure to allow electoral politics to influence their decisions, even when fundamental rights are at stake.

Citizens United (which removed regulatory barriers to corporate electioneering) has fundamentally changed the politics of state judicial elections. Outside interest groups, often with high-stakes economic interests or political causes before the courts, now routinely pour millions of dollars into state supreme court elections. These powerful interests understand the important role that state supreme courts play in American government, and seek to elect justices who will rule as they prefer on priority issues such as environmental and consumer protections, marriage equality, reproductive choice and voting rights. Although their economic and political priorities are not necessarily criminal justice policy, these sophisticated groups understand that “soft on crime” attack ads are often the best means of removing from office justices they oppose.

This study’s two principal findings:

The more TV ads aired during state supreme court judicial elections in a state, the less likely justices are to vote in favor of criminal defendants. As the number of airings increases, the marginal effect of an increase in TV ads grows. In a state with 10,000 ads, a doubling of airings is associated on average with an 8 percent increase in justices’ voting against a criminal defendant’s appeal.

Justices in states whose bans on corporate and union spending on elections were struck down by Citizens United were less likely to vote in favor of criminal defendants than they were before the decision. Citizens United changed campaign finance most significantly in 23 of the states where there were prohibitions on corporate and union electioneering prior to the decision. In these states, the removal of those prohibitions after Citizens United is associated with, on average, a 7 percent decrease in justices’ voting in favor of criminal defendants.

The study is based on the work of a team of independent researchers from the Emory University School of Law. With support from the American Constitution Society, the researchers collected and coded data from over 3,000 criminal appeals decided in state supreme courts in 32 states and examined published opinions from 2008 to 2013. State supreme courts are multi-judge bodies that decide appeals collectively by majority vote; the researchers coded individual votes from over 470 justices in these cases. These coded cases were merged with data from the Brennan Center for Justice reporting the number of TV ads aired during each judicial election from 2008 to 2013.


The study can be found here.


Effective Assistance in Plea Negotiations

posted by Judge_Burke @ 15:00 PM
December 16, 2014

Structuring Pre-Plea Criminal Discovery

Daniel S. McConkie Jr.

Brigham Young University – J. Reuben Clark Law School
December 1, 2014

Journal of Criminal Law and Criminology, Forthcoming 


Ninety-seven percent of federal defendants plead guilty, and they rely on prosecutors for much of the information about the government’s case on which the decision to plead is based. Although federal prosecutors routinely turn over most necessary discovery to the defense, the law does not require them to turn over any discovery before the guilty plea.
This can lead to innocent defendants pleading guilty and to guilty defendants pleading guilty without information that could have affected the agreed-upon sentence.

This article argues that the lack of a judicially enforceable pre-plea discovery regime flouts structural protections that due process is supposed to provide. Defendants who plead not guilty and go to trial get a jury to adjudicate guilt and a judge to preside over the proceedings and pronounce sentence. The judge and jury hear an adversarial presentation of the evidence, and the judge at sentencing can consider an even broader spectrum of information about the defendant and the crime. But defendants who plead guilty effectively act as their own judge and jury. Unfortunately, because prosecutors are not required to provide any pre-plea discovery, the defendant who pleads guilty may not have nearly as much information as the judge and jury would have had at trial and sentencing.

The Supreme Court has employed a balancing test to determine whether a particular procedure comports with due process. This article proposes tailoring that test to the pre-plea discovery context. The proposed test would ask (1) whether the defense is getting sufficient information before the guilty plea to promote accurate sorting of the innocent from the guilty and reasonably informed and consistent sentencing; (2) whether there are there clear rules
that allow judges, before a guilty plea, to regulate prosecutors’ decision not to disclose; and (3) whether the production of pre-plea discovery in a given case imposes undue costs on society.

One hopeful development is that several district courts, pursuant to Congressionally-granted authority, have promulgated local rules for pre-plea discovery. Although the Constitution does not require it, I argue that Congress should adopt several of these time-tested rules to give both clear standards to prosecutors and authority to judges to enforce liberal pre-plea


Does This Make Sense?

posted by Judge_Burke @ 18:30 PM
December 15, 2014

The Center on Budget and Policy Priorities released a report looking at state criminal justice reforms and investments in education.  It adds to the growing consensus that “state policies, not crime levels” have been the biggest driver of rising incarceration rates.  Crime rates have risen and fallen independently of incarceration rates and arrests per crime have been stable, but the share of offenders sent to prison and the length of stays in prison for all crimes have grown significantly.


Supreme Court to Decide Retroactivity of Miller v. Alabama

posted by Judge_Burke @ 15:16 PM
December 15, 2014

ScotusBlog reports that the United States Supreme Court has accepted cert in Toca v. Louisiana.

The question is:  Does the rule announced in Miller v. Alabama apply retroactively?  Many states have held that the rule is retroactive, but obviously not all.


Reform of the United States Supreme Court

posted by Judge_Burke @ 15:00 PM
December 8, 2014

There are some very smart (some might say brilliant) people serving on the United States Supreme Court. Despite that, public opinion of the Supreme Court is at a record low.  How the people view that court can set a tone for how all judges are viewed.  All of us have a stake in the success of the United States Supreme Court.

The Brennan Center Fair Courts E Alert reports:

An opinion piece published in the Los Angeles Times this week calls for reforms that would make the U. S. Supreme Court more transparent and accountable. “In spite of [the Court’s] vast power, the justices have little accountability. Not only do they decide for themselves when to recuse themselves from cases in which they have conflicts; they also aren’t bound to a code of ethics the way the rest of [the] federal judiciary is. They can decide how much information on investments and travel to release in their annual financial disclosure reports, and they determine when and where people can demonstrate near their building,” writes author Gabe Roth. Roth is the executive director of Fix the Court, a non-partisan group that was recently launched to promote Supreme Court reform. Roth notes that “[d]espite the well-documented political divisions across the country, Republicans, Democrats and Independents are united in their desire for a more accountable Supreme Court. Recent polling found that more than 85% of Americans of all ideologies support requiring the justices to follow the judicial code of conduct from which they are currently exempt. Large majorities also support cameras in the courtroom and compelling the justices to post disclosure reports online.” According to their website, Fix the Court will be seeking improvement in five main areas: (1) recusal reporting; (2) financial disclosures; (3) adherence to the federal judicial code of ethics; (4) documentation of the justices’ public appearances; and (5) media and public access to oral arguments and opinion announcements.


More On Crawford

posted by Judge_Burke @ 15:00 PM
December 3, 2014

The Sentencing Law & Policy Blog reports:

First Impressions, the online companion to the Michigan Law Review, has a new on-line symposium titled “Crawford v. Washington: A Ten Year Retrospective.” Here is how the editors introduce the pieces and links thereto:

No one disputes the significance of Crawford v. Washington, 541 U.S. 36 (2004), which fundamentally transformed Confrontation Clause jurisprudence. But ten years after the Supreme Court’s landmark decision, scholars, practitioners, and judges still debate its logic and its consequences. This Symposium continues that debate, featuring essays written by Professors Richard D. Friedman and Jeffrey L. Fisher, who advocated in Crawford itself for the Supreme Court to adopt the “testimonial” approach to the Confrontation Clause; Professor George Fisher, one of the nation’s premier scholars of criminal law and evidence; and Professor Deborah Tuerkheimer, who has written extensively on the Crawford regime’s effect on domestic violence prosecutions.

The Symposium consists of five essays. Professors George Fisher and Tuerkheimer both wrote longer essays, while Professors Friedman and Jeff Fisher each wrote a shorter piece and collaborated on a joint response to George Fisher’s essay.

We hope this Symposium fosters further debate about the merits of the Crawford regime and inspires the practitioners, scholars, and judges who will shape the contours of the Confrontation Clause over the next ten years.



Race & Crime

posted by Judge_Burke @ 15:00 PM
December 2, 2014

Charles Blow has a thoughtful commentary in the New York Times that begins:

One thing the grand jury decision in Ferguson, Mo., has sent back to the surface is just how difficult it is to have cross-racial discussions about crime and punishment in this country. That is largely because, perceptually and experientially, we live in vastly different worlds, worlds in which phrases like “bad choices,” “personal responsibility” and “tailspin of culture” must battle for primacy with “structural inequity,” “systemic bias” and “culture of oppression.”

Let’s begin to unpack this by pointing to what the data say about our distortions of perception when it comes to crime.

A September report by the Sentencing Project found that “white Americans overestimate the proportion of crime committed by people of color, and associate people of color with criminality.” For some crimes, the overestimation was “by 20-30 percent.”

This is particularly significant in light of the fact that Americans overestimate the presence of crime in general. As a Gallup report pointed out recently: “For more than a decade, Gallup has found the majority of Americans believing crime is up, although actual crime statistics have largely shown the crime rate continuing to come down from the highs in the 1990s and earlier.”


The full piece can be found here.



Looking for a Court IT Head? Hire A Hacker

posted by Judge_Burke @ 15:00 PM
December 1, 2014

The Law Blog -WSJ reports:

Increasingly worried about the state of their cyber security, and unable to hire or retain specialist staff, U.K. firms are looking to hire hackers and ex-convicts in a desperate bid to secure their networks.

In a report released Monday, KPMG said that over the past two years it has become increasingly difficult to find and retain IT professionals with specific cyber-security — AKA hacking — skills.

Any professionals that are in the field are targets of aggressive headhunting, KPMG said.

The report said the skills gap is forcing many companies to consider turning to ‘poachers turned game-keepers’ to keep up to speed.

The demand is being driven by an increase in threats and heightened awareness among senior management of the need to defend against attacks. The U.K. government puts the annual cost of cybercrime to the economy at some £27 billion per year ($42 billion).

KPMG surveyed 300 senior IT and HR professionals in organizations employing 500-plus staff in the U.K.

53 percent of respondents say they would consider using a hacker to bring “inside information” to their security teams.

Just over half, 52 percent, would also consider recruiting an expert even if they had a previous criminal record.


The full story can be found here.