Implementing Proportionality

posted by Judge_Burke @ 14:30 PM
July 26, 2016

Perry L. Moriearty

University of Minnesota – Twin Cities – School of Law

July 4, 2016

UC Davis Law Review, 2016

Abstract:     

Over the last fourteen years, the Supreme Court has issued five decisions that impose substantive constraints on our harshest punishments — forbidding the execution of those with “mental retardation” in Atkins v. Virginia, of juveniles in Roper v. Simmons, and of those convicted of child sexual assault in Kennedy v. Louisiana, and forbidding the sentence of life without parole for juveniles who had not killed in Graham v. Florida and for all juveniles when it is imposed mandatorily in Miller v. Alabama. Because the offenders in question were categorically less culpable, the proscribed punishment was disproportionately severe, the Court held. In many respects, these decisions reinvigorated the Court’s substantive proportionality jurisprudence, which had been virtually dormant for two decades. Yet, three of the five decisions simply have not yielded in practice what they promised in principle. The implementation of Atkins, Graham and Miller has been so protracted, litigious and encumbered by procedural obstacles that, of the nearly 3,000 inmates nominally impacted by the decisions, only a fraction has been relieved of their sentences. In the meantime, inmates with IQs of 61 have been executed, and others have died waiting to hear whether the Court’s decisions apply retroactively.

This Article argues that, despite its transformative potential, the Court’s contemporary proportionality jurisprudence has been diminished in scope and potency in the course of its implementation – a dynamic that has been called “slippage.” In many respects, the “slippage” of these mandates can be attributed to the decisions themselves, which are deregulatory and, in concert with the Court’s broader efforts to limit federal court jurisdiction over state criminal justice processes, tie the scope of relief to the political whims and majoritarian preferences of the States. On some issues, the procedural docility of these decisions has proven so problematic that the Court has twice within the last two years had to intervene, striking portions of Florida’s capital sentencing scheme in 2014 and, just weeks ago, declaring in Montgomery v. Louisiana that Miller does in fact apply retroactively. While the Court’s reluctance to regulate the implementation of its proportionality mandates may be rationalized as necessary deference to the principles of federalism and finality, these justifications are far less compelling in the Eighth Amendment context. The very establishment of federal habeas, executive clemency, and Supreme Court review suggests that the Framers themselves recognized that there are normative points when interests in federalism and finality simply must yield. By contrast, the risk of offending constitutional norms through slippage may be at their most pronounced since one of the Eighth Amendment’s primary purposes is to protect the politically powerless from government overreach. I conclude that, if the Court is serious about implementing in practice the substantive constraints on punishment it has imposed over the last fourteen years, it must accompany its substantive mandates with a minimum threshold of procedural prescription.

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Judicial Participation in Plea Negotiations

posted by Judge_Burke @ 15:53 PM
July 25, 2016

Nancy J. King and Ronald F. Wright (Vanderbilt University – Law School and Wake Forest University – School of Law) have posted The Invisible Revolution in Plea Bargaining: Managerial Judging and Judicial Participation in Negotiations (Texas Law Review, Forthcoming) on SSRN.

Here is the abstract:

This article, the most comprehensive study of judicial participation in plea negotiations since the 1970s, reveals a stunning array of new procedures that involve judges routinely in the settlement of criminal cases. Interviewing nearly 100 judges and attorneys in ten states, we found that what once were informal, disfavored interactions have quietly, without notice, transformed into highly structured, best practices for docket management. We learned of grant-funded, problem-solving sessions complete with risk assessments and real-time information on treatment options; multi-case conferences where other lawyers chime in; settlement courts located at the jail; settlement dockets with retired judges; full-blown felony mediation with defendant and victims; felony court judges serving as lower court judges, and more. We detail the reasons these innovations in managerial judging have developed so recently on the criminal side, why they thrive, and why some judges have not joined in. Contrary to common assumptions, the potential benefits of regulated involvement of the judge include more informed sentencing by judges, as well as less coercion and uncertainty for defendants facing early plea offers. Our qualitative evidence also raises intriguing hypotheses for future research.

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Video Appearance Cannot Be Used For Sentencing

posted by Judge_Burke @ 14:30 PM
July 22, 2016

Jacob Gershman has an interesting post in the LawBlog of The Wall Street Journal on a recent Michigan case. If followed by other states, the opinion could be significant.

Convicted felons may not be sentenced through videoconferencing but must be given the opportunity to look a judge in the eye, a state appeals court has ruled.

Citing Marshall McLuhan’s famous observation that “the medium is the message,” a Michigan appeals court said a trial judge failed to acknowledge the humanity of a drug offender who watched remotely from a jail as a judge on a screen handed down his sentence from a courtroom.

The appeals court said that while “two-way interactive video technology” saves courts time and money, the practice disrespects the dignity of the defendant.

Hundreds of courtrooms in Michigan are equipped with videoconferencing, and state court rules permit the technology to be used for arraignments, at sentencings for misdemeanor offenses and in other settings. The rules are silent about whether it can be deployed at a felony sentencing.

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The Wisdom of Abner Mikva

posted by Judge_Burke @ 14:30 PM
July 21, 2016

Former Judge Abner Mikva passed away recently. He was a remarkable man having served in Congress, served as the Chief Judge on the DC Circuit and briefly as White House Counsel. The Marshall Project had this short piece about him:

On Nov. 16, 1994, Mikva gave a lecture, “The Treadmill of Criminal Justice Reform,” at the Cleveland-Marshall College of Law in Ohio. Mikva’s lecture was delivered two months after President Bill Clinton signed the Violent Crime Control and Law Enforcement Act of 1994 and a year and a half before he would sign the Antiterrorism and Effective Death Penalty Act of 1996. The former helped accelerate mass incarceration while the latter stripped habeas corpus appeals of considerable force.

 

Judge Mikva’s lecture is well worth reading…and perhaps we would all be better off had more people read it when it was delivered.

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Implementing Proportionality

posted by Judge_Burke @ 14:30 PM
July 20, 2016

Perry L. Moriearty

University of Minnesota – Twin Cities – School of Law

July 4, 2016

UC Davis Law Review, 2016

Abstract:     

Over the last fourteen years, the Supreme Court has issued five decisions that impose substantive constraints on our harshest punishments — forbidding the execution of those with “mental retardation” in Atkins v. Virginia, of juveniles in Roper v. Simmons, and of those convicted of child sexual assault in Kennedy v. Louisiana, and forbidding the sentence of life without parole for juveniles who had not killed in Graham v. Florida and for all juveniles when it is imposed mandatorily in Miller v. Alabama. Because the offenders in question were categorically less culpable, the proscribed punishment was disproportionately severe, the Court held. In many respects, these decisions reinvigorated the Court’s substantive proportionality jurisprudence, which had been virtually dormant for two decades. Yet, three of the five decisions simply have not yielded in practice what they promised in principle. The implementation of Atkins, Graham and Miller has been so protracted, litigious and encumbered by procedural obstacles that, of the nearly 3,000 inmates nominally impacted by the decisions, only a fraction has been relieved of their sentences. In the meantime, inmates with IQs of 61 have been executed, and others have died waiting to hear whether the Court’s decisions apply retroactively.

This Article argues that, despite its transformative potential, the Court’s contemporary proportionality jurisprudence has been diminished in scope and potency in the course of its implementation – a dynamic that has been called “slippage.” In many respects, the “slippage” of these mandates can be attributed to the decisions themselves, which are deregulatory and, in concert with the Court’s broader efforts to limit federal court jurisdiction over state criminal justice processes, tie the scope of relief to the political whims and majoritarian preferences of the States. On some issues, the procedural docility of these decisions has proven so problematic that the Court has twice within the last two years had to intervene, striking portions of Florida’s capital sentencing scheme in 2014 and, just weeks ago, declaring in Montgomery v. Louisiana that Miller does in fact apply retroactively. While the Court’s reluctance to regulate the implementation of its proportionality mandates may be rationalized as necessary deference to the principles of federalism and finality, these justifications are far less compelling in the Eighth Amendment context. The very establishment of federal habeas, executive clemency, and Supreme Court review suggests that the Framers themselves recognized that there are normative points when interests in federalism and finality simply must yield. By contrast, the risk of offending constitutional norms through slippage may be at their most pronounced since one of the Eighth Amendment’s primary purposes is to protect the politically powerless from government overreach. I conclude that, if the Court is serious about implementing in practice the substantive constraints on punishment it has imposed over the last fourteen years, it must accompany its substantive mandates with a minimum threshold of procedural prescription.

0  Comments

Judicial Participation in Plea Negotiations

posted by Judge_Burke @ 14:52 PM
July 19, 2016

Nancy J. King and Ronald F. Wright (Vanderbilt University – Law School and Wake Forest University – School of Law) have posted The Invisible Revolution in Plea Bargaining: Managerial Judging and Judicial Participation in Negotiations (Texas Law Review, Forthcoming) on SSRN.

Here is the abstract:

This article, the most comprehensive study of judicial participation in plea negotiations since the 1970s, reveals a stunning array of new procedures that involve judges routinely in the settlement of criminal cases. Interviewing nearly 100 judges and attorneys in ten states, we found that what once were informal, disfavored interactions have quietly, without notice, transformed into highly structured, best practices for docket management. We learned of grant-funded, problem-solving sessions complete with risk assessments and real-time information on treatment options; multi-case conferences where other lawyers chime in; settlement courts located at the jail; settlement dockets with retired judges; full-blown felony mediation with defendant and victims; felony court judges serving as lower court judges, and more. We detail the reasons these innovations in managerial judging have developed so recently on the criminal side, why they thrive, and why some judges have not joined in. Contrary to common assumptions, the potential benefits of regulated involvement of the judge include more informed sentencing by judges, as well as less coercion and uncertainty for defendants facing early plea offers. Our qualitative evidence also raises intriguing hypotheses for future research.

0  Comments

The Right to a Speedy Trial: A Canadian Perspective

posted by Judge_Burke @ 20:26 PM
July 18, 2016

The issue of when does a lack of speedy trial is not litigated often, but it does occur. Recently, the Supreme Court of Canada overturned  a defendant’s drug possession and trafficking conviction because he had been made to wait too long for his trial. The defendant  had waited three years before his three day trial was held, leading the Supreme Court  to the conclusion that he was denied the right to be tried within a reasonable time in violation of s.11 of the Canadian Chart of Rights and Freedom.

Justice Michael Moldaver, writing for the court, stated that, in considering a legal case, “courts must be careful not to miss the forest for the trees,” and that “[l]ooking at this forest – that is, the overal delay in a case of moderate complexity – [he is] satisfied that the delay was unreasonable.” Adding to the courts rationale was the fact that the defendant  had taken “proactive steps…to have his case tried as soon as possible.”

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The Color of Justice

posted by Judge_Burke @ 14:30 PM
July 15, 2016

African-Americans are incarcerated in state prisons at a rate that is 5.1 times that of whites; in five states (Iowa, Minnesota, New Jersey, Vermont and Wisconsin) the disparity is 10 to 1.

In 12 states, more than half the prison population is black, led by Maryland, whose population is 72 percent black. These statistics come out of a new report (available at The Sentencing Project) chronicling racial disparities in criminal justice. According to The Pew Charitable Trusts, Native American girls “have the highest rates of incarceration of any ethnic group. They are nearly five times more likely than white girls to be confined to a juvenile detention facility.”  

 

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That Magnetic Strip on a Credit Card

posted by Judge_Burke @ 14:30 PM
July 14, 2016

From arstechnica, courtesy of NACDL news scan. In part:

A federal appeals court ruled Wednesday that law enforcement can legally scan or swipe a seized credit card—in fact, it is not a Fourth Amendment search at all, so it doesn’t require a warrant.

In the 8th Circuit Court of Appeals’ 15-page opinion, swiping a card does not constitute a physical search, as the magnetic stripe simply contains the same information obviously visible on the front of the card. Plus, the defendant, Eric-Arnaud Benjamin Briere De L’Isle, couldn’t have had a reasonable privacy interest in the card, the court concluded, because he would have tried to use it when he tried to buy something, thereby giving up privacy interests to a third party (the issuing bank).

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Domestic Violence Decision of the United States Supreme Court

posted by Judge_Burke @ 14:40 PM
July 13, 2016

The Supreme Court gave federal prosecutors a unanimous win this morning through its opinion in US v. Bryant, No.15-420 (S. Ct. June 13, 2016) (available here). The opinion by Justice Ginsburg for the Court gets started this way:

In response to the high incidence of domestic violence against Native American women, Congress, in 2005, enacted 18 U. S. C. §117(a), which targets serial offenders.  Section 117(a) makes it a federal crime for any person to “commi[t] a domestic assault within . . . Indian country” if the person has at least two prior final convictions for domestic violence rendered “in Federal, State, or Indian tribal court proceedings.”  See Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA Reauthorization Act), Pub. L. 109–162, §§901, 909, 119 Stat. 3077, 3084.1 Respondent Michael Bryant, Jr., has multiple tribal-court convictions for domestic assault. For most of those convictions, he was sentenced to terms of imprisonment, none of them exceeding one year’s duration. His tribal-court convictions do not count for §117(a) purposes, Bryant maintains, because he was uncounseled in those proceedings.

The Sixth Amendment guarantees indigent defendants, in state and federal criminal proceedings, appointed counsel in any case in which a term of imprisonment is imposed.  Scott v. Illinois, 440 U. S. 367, 373–374 (1979).  But the Sixth Amendment does not apply to tribal-court proceedings.  See Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U. S. 316, 337 (2008).  The Indian Civil Rights Act of 1968 (ICRA), Pub. L. 90–284, 82 Stat. 77, 25 U. S. C. §1301 et seq., which governs criminal proceedings in tribal courts, requires appointed counsel only when a sentence of more than one year’s imprisonment is imposed.  §1302(c)(2).  Bryant’s tribal-court convictions, it is undisputed, were valid when entered.  This case presents the question whether those convictions, though uncounseled, rank as predicate offenses within the compass of §117(a).  Our answer is yes.  Bryant’s tribal-court convictions did not violate the Sixth Amendment when obtained, and they retain their validity when invoked in a §117(a) prosecution.  That proceeding generates no Sixth Amendment defect where none previously existed.

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