10 United States Supreme Court Cases State & Local Government Care About

posted by Judge_Burke @ 15:23 PM
October 24, 2014

The Council of State Governments reports:

Gregory Holt, an inmate at the Arkansas Department of Corrections, wants to grow his beard as a practicing Salafi Muslim. But Arkansas Corrections restricts beard length to a quarter of an inch. In protest, Holt filed a petition, arguing that the policy is a violation of his religious liberties under the federal Religious Land Use and Institutionalized Persons Act. Holt’s case is one of many scheduled to be heard by the U.S. Supreme Court in its [current] term.

Justices have already agreed to hear a host of cases that could affect state or local government. The disputes cover a range of issues, from a small town sign code that could be restricting free speech to a state regulatory board alleged to be violating federal antitrust laws.

In the Holt case, scheduled for a hearing Oct. 7, attorneys general from 18 states have written to support Arkansas, contending that “uniform grooming policies serve compelling interests in security, order, hygiene and discipline.” Judges should defer to prison officials in balancing religious rights with public health and safety, the attorneys general say.

The attorneys general supporting Arkansas note that in other state prisons, inmates have hidden shanks, wire, rocks, razor blades and handcuff keys in their hair and beards. They also say that when inmates are allowed to grow facial hair and then shave it, the dramatic change in appearance poses a security risk, as prison guards might not recognize the inmate. If the court sides with Holt, the ruling will probably have narrow implications for prison grooming policies, but it could have larger meaning in terms of how prisons and jails balance safety concerns with religious liberties.

The State and Local Legal Center (SLLC) has identified 10 cases, including Holt’s, that might affect state and local government. The center files amicus briefs with the Supreme Court on behalf of the National Governors Association, the Council of State Governments, the National Association of Counties, the National League of Cities and the International City/County Management Association.  Lisa Soronen, the executive director at SLLC, also has curated a separate list of other relevant cases that the Supreme Court could decide to hear this term.


The Strange Case of Judge Jones

posted by Judge_Burke @ 15:48 PM
October 23, 2014

Judge Edith Jones was nominated to the bench by President Ronald Reagan, and until recently was the chief judge of the Fifth Circuit.  She was mentioned during Republican administrations as a possible Supreme Court nominee.

In 2013, Judge Jones gave a speech to the Federalist Society chapter in Pennsylvania.  Shortly after the speech a group of legal ethicists and civil rights groups claimed, among other things, that Judge Jones said in her speech that “racial groups like African-Americans and Hispanics are predisposed to crime.”

The complaint said such statements violated the judicial code’s requirement that a judge be impartial and avoid damaging public confidence in the judiciary.  In the Washington Post, Professor Eugene Volokh wrote,

The decision is here; it was handed down in August, but it’s only now being publicized, together with an appeal by complainants. The facts are complicated, and the Report of the Special Committee (which begins on page 5) is pretty readable, though long, so I’ll refer readers to it.

Because Jones’s speech wasn’t recorded, and because the witnesses’ recollections differ (and in any case fall prey to the perils inherent in such recollections), it’s not easy to know just what was said.


The propriety of judicial speech is not a simple matter.  Although long, for those interested in the subject, the decision is worth reading.





Wisdom from Linda Greehouse: We Need Explanations

posted by Judge_Burke @ 14:00 PM
October 22, 2014

One of the key things judges at every level of service can do to build trust in the judiciary is to be very good in giving explanations.

Understandable explanations are bedrock to procedural fairness – and essential in an era where trust in the judiciary is not what it should be.  Linda Greenhouse has a short commentary about the opening week of this term of the United States Supreme Court. She writes, in part,

I keep thinking of Chief Justice John Marshall’s famous declaration in Marbury v. Madison 211 years ago that launched the Supreme Court on its project of judicial review:  “It is emphatically the province and duty of the judicial department to say what the law is.” O.K., at this point, I would settle for something less ambitious. I’d be grateful if the Supreme Court would say something.


The full commentary cany be found here.


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.