Archive for January, 2016

Ruthann Robson is a Professor of Law and University Distinguished Professor. She recently wrote an interesting short commentary on a case regarding the attempt by Thomas Dart, the Cook County Illinois Sheriff, to stop or curtail advertising in a publication called Backpage.

Very few judges will ever face ruling on a case like this, but Professor Robson’s commentary and the case’s opinion, written by Judge Posner, are an interesting read:

Writing for a unanimous three judge panel, Judge Posner’s opinion in LLC v. Dart, finds that the “campaign” by the Sheriff of Cook County, Tom Dart to “crush Backpage’s adult section—crush Backpage, period, it seems—by demanding that firms such as Visa and MasterCard prohibit the use of their credit cards to purchase any ads on Backpage, since the ads might be for illegal sex-related products or services, such as prostitution,” violated the First Amendment.

The centerpiece was a letter from the sheriff, beginning “As the Sheriff of Cook County, a father and a caring citizen, I write to request that your institution immediately cease and desist from allowing your credit cards to be used to place ads on websites like” The court finds it important that Dart is “sheriff first,” and later observes:

Imagine a letter that was similar to Sheriff Dart’s but more temperate (no “demand,” no “compels,” no “sever [all] ties”) and sent to a credit card company by a person who was not a law-enforcement officer. The letter would be more likely to be discarded or filed away than to be acted on. For there is evidence that the credit card companies had received such complaints from private citizens, yet it was Dart’s letter that spurred them to take immediate action to cut off Back- page. For that was a letter from a government official containing legal threats and demands for quick action and insisting that an employee of the recipient be designated to answer phone calls or respond to other communications from the sheriff. It was within days of receiving the letter that the credit card companies broke with Backpage. The causality is obvious.

Judge Posner’s opinion takes pains to point out that the sheriff is not “on solid ground” in suggesting that “everything in the adult section of Backpage’s website is criminal, violent, or exploitive. Fetishism? Phone sex? Performances by striptease artists? (Vulgar is not violent.)” (emphasis in original).  Posner cites an article from and wikipedia for information; he does not cite his own 1994 book Sex and Reason, though he might well have.

Posner rejected the conclusion of the district judge that the credit card companies were not coerced – - – what would one expect the corporate executives to say?  – - – and likewise rejected the argument that the credit card companies were acting on new information brought to their attention by the sheriff.  An email exchange between two credit card employees referencing “blackmail” is mentioned.  Moreover, Posner rejected the argument that the sheriff had his own First Amendment right, as a citizen and even to engage in “government speech.”

A government entity, including therefore the Cook County Sheriff’s Office, is entitled to say what it wants to say—but only within limits. It is not permitted to employ threats to squelch the free speech of private citizens.

Posner then expands on why the sheriff’s speech was a threat, and, with a resort to a bit of “law and economics” explains why the credit card companies would ‘knuckle under’ with “such alacrity.”


Remorse & Sentencing: Just How Much Weight Should You Give To It?

posted by Judge_Burke @ 15:30 PM
January 27, 2016

Judges make decisions at sentencing every day — and factor in the defendant’s remorse. Sometimes the term used is “acceptance of responsibility,” but the bottom line is:  perception of remorse frequently helps temper the sentence.

But, what if the perception of remorse is inaccurate?  There is an interesting paper on the subject of remorse, written by Professor Susan Bandes of DePaul University College of Law.

The abstract begins:

 A defendant’s failure to show remorse is one of the most powerful factors in criminal sentencing, including capital sentencing. Yet there is currently no evidence that remorse can be accurately evaluated in a courtroom. Conversely there is evidence that race and other impermissible factors create hurdles to evaluating remorse. There is thus an urgent need for studies about whether and how remorse can be accurately evaluated. Moreover, there is little evidence that remorse is correlated with future law-abiding behavior or other legitimate penal purposes, and, in fact, there is evidence that remorse is often conflated with shame, which is correlated with increased future criminality. More accurate information on the nature and evaluation of remorse can be used to reform the criminal justice system. 

The paper is available here:



Are We Too Lax in Allowing Seizures?

posted by Judge_Burke @ 15:30 PM
January 26, 2016

Lauryn P. Gouldin (Syracuse University College of Law) has posted Redefining Reasonable Seizures on SSRN.

Here is the abstract:

The government’s power to seize individuals who are suspected of crimes — by arresting, stopping, or otherwise detaining them — has expanded significantly in the twenty-first century. The Supreme Court’s gradual redefinition of what constitutes a reasonable Fourth Amendment seizure has occurred without meaningful evaluation of whether the government needs additional seizure or detention power.

There are key differences between search and seizure doctrine that make the development of a general and unifying explanatory theory of modern Fourth Amendment search and seizure trends difficult, if not impossible. These differences suggest that a focused, independent analysis of Fourth Amendment seizure developments (uncoupled from search- and privacy-focused analyses) is overdue.

This Article documents the expansion of seizure power across the spectrum over the last fifteen years. These cases reveal missed opportunities to provide greater protection to individuals, and they identify spaces where new technologies might justify revisiting settled rules. In addition, these decisions reveal how the Court’s reluctance to probe government motivations and to consider less intrusive alternatives undermines its efforts to balance individual rights against government interests.

The Article then outlines the individual rights and collective interests that are implicated in seizure cases. Finally, the Article analyzes the problems presented by the Court’s approach to calculating necessity in seizure cases. Proposals for reform are focused on four areas: requiring precise statements of government needs in seizure cases; looking to existing laws, guidelines, and police norms to support (or refute) necessity claims; requiring greater proof of a need to seize in cases involving more minor offenses; and considering alternative approaches, technological changes, and long-term costs in calculating necessity.


Questions from Jurors

posted by Judge_Burke @ 15:30 PM
January 22, 2016

It is a practice that divides the courts. There are proponents who argue that by allowing jurors to ask their own questions you get more attentive jurors and better results. But, there are equally thoughtful people who say that by allowing jurors to ask their own questions, you fundamentally change the nature of our legal system from adversarial to inquisitorial — and change the meaning of the burden of proof. It is a debate that will not quickly be resolved.

Thomas D. Waterman , Mark W. Bennett and David C. Waterman (Iowa Supreme Court , U.S. District Court (Northern District of Iowa) and United States Courts – United States Court of Appeals for the Eighth Circuit) have posted A Fresh Look at Jurors Questioning Witnesses: A Review of Eighth Circuit and Iowa Appellate Precedents and an Empirical Analysis of Federal and State Trial Judges and Trial Lawyers (Drake Law Review, Vol. 64, 2-16, Forthcoming) on SSRN.

Here is the abstract:

An Iowa Supreme Court justice, federal district judge, and an Iowa lawyer take a fresh look at the emerging jury trial innovation of jurors asking questions of witnesses (the “practice”). The authors start with the first combined comprehensive analysis of Eighth Circuit and Iowa appellate case law on the practice. This analysis reveals some interesting twists and turns, including substantial differences between the two jurisdictions’ case law and the fact that the Iowa Supreme Court first mentioned the practice more than 130 years ago in 1884. The authors incorporate and discuss prior surveys on the subject but, more importantly, conduct their own extensive and probing empirical study. This study is based on data collected from five online surveys, one each for Iowa trial court judges, federal district judges in the Eighth Circuit, and magistrate judges in the Eighth Circuit, and for two cohorts of Iowa lawyers, all conducted in the fall of 2015. The authors found a dramatic difference in virtually all of the components of the study between lawyers and judges who have experienced the practice (the clear minority) and those that haven’t (the clear majority). The authors conclude that the positive benefits of allowing jurors to question witnesses far outweigh the few negatives and provide a suggested written protocol to encourage judges who have been reluctant to try the practice to take the small leap.



Modern Day Debtors’ Prisons

posted by Judge_Burke @ 15:30 PM
January 15, 2016

Neil L. Sobol (Texas A&M University – School of Law) has posted Charging the Poor: Criminal Justice Debt & Modern-Day Debtors’ Prisons (Maryland Law Review, Vol. 75, 2016, Forthcoming) on SSRN.

Here is the abstract:

Debtors’ prisons should no longer exist. While imprisonment for debt was common in colonial times in the United States, subsequent constitutional provisions, legislation, and court rulings all called for the abolition of incarcerating individuals to collect debt. Despite these prohibitions, individuals who are unable to pay debts are now regularly incarcerated, and the vast majority of them are indigent. In 2015, at least ten lawsuits were filed against municipalities for incarcerating individuals in modern-day debtors’ prisons.

Criminal justice debt is the primary source for this imprisonment. Criminal justice debt includes fines, restitution charges, court costs, and fees. Monetary charges exist at all stages of the criminal justice system from pre-conviction to parole. They include a wide variety of items, such as fees for electronic monitoring, probation, and room and board. Forty-three states even charge fees for an indigent’s “free” public defender. With expanding incarceration rates and contracting state budgets, monetary sanctions have continued to escalate. Additionally, many states and localities are now outsourcing prison, probation, monitoring, and collection services to private companies, who add additional fees and charges to the criminal justice debt burden of defendants.

The impact of criminal justice debt is especially severe on the poor and minorities as they are frequently assessed “poverty penalties” for interest, late fees, installment plans, and collection. Often they have to decide between paying criminal justice debt and buying family necessities. The deaths of Michael Brown in Ferguson, Eric Garner in New York, and Freddie Gray in Baltimore have prompted renewed calls for investigation of the adverse treatment of the poor and minorities in the criminal justice system. The fear of arrest, incarceration, and unfair treatment for those owing criminal justice debt creates distrust in the system.

In February 2015, a class action complaint was filed against the City of Ferguson asserting that the city’s jails had become a “modern debtors’ prison scheme” that had “devastated the City’s poor, trapping them for years in a cycle of increased fees, debts, extortion, and cruel jailings.” Moreover, the Department of Justice’s report on the Ferguson Police Department presents a scathing indictment of a system apparently more concerned with revenue collection than justice. Unfortunately, as illustrated by recent lawsuits and investigations alleging debtors’ prisons in Alabama, Colorado, Georgia, Louisiana, Mississippi, New Hampshire, Ohio, Oklahoma, Tennessee, Texas, and Washington, the abuses are not limited to Ferguson, Missouri.

The same concerns that led to the historical restrictions on debtors’ prisons have risen again with the growth of modern-day debtors’ prisons. Similar to the prisons in London during the eighteenth and nineteenth centuries that were criticized for using a privatized system that charged inmates for all services, including room and board, the current justice system improperly charges the poor. It is now time to revisit these concerns and implement effective restrictions to reduce the incidence of debtors’ prisons. To remedy these concerns, my Article proposes eliminating egregious sanctions, providing courts flexibility to base fines on earning levels, and establishing procedures to enforce restrictions against incarcerating those who are truly unable to pay their criminal justice debt.



Judge Jamey Hueston on Mindful Judging

posted by Judge_Burke @ 19:41 PM
January 14, 2016

Jamey H Hueston (United States District Courts for The District of Maryland – District 1, Baltimore City) has posted The Mindful Court: Meditation for Substance Abuser (American Bar Association Criminal Justice Magazine, Magazine, Fall 2015 p36) on SSRN.

Here is the abstract:

Meditation, has long been practiced throughout the world to promote physical, emotional healing and well-being. More recently, it has been scientifically proven to reduce drug cravings, and aid those with substance abuse problems to achieve calmness which facilitates their receptivity to treatment. I have promoted meditation in my drug court program for many years as one tool to help program participants suffering from chronic drug dependence to decrease drug usage and relapse and stimulate positive change. The recuperative benefits of meditation are so extensive and without a negative downside that I have now expanded its use into the traditional courtroom when presiding in both civil and criminal dockets.

In this article, I address the background of mindfulness meditation and the value of integrating this practice for substance abuse offenders, and its applicability in all court settings as a means to help litigants.



My Defense Is: Some Other Dude Did It

posted by Judge_Burke @ 18:18 PM
January 12, 2016

David S. Schwartz and Chelsey B. Metcalf (University of Wisconsin Law School and Foley & Lardner) have posted Disfavored Treatment of Third-Party Guilt Evidence (Wisconsin Law Review, 2016, Forthcoming) on SSRN.

Here is the abstract:

Forty-five states and ten federal circuits impose some type of disfavored treatment on a criminal defendant’s evidence that a person other than himself committed the crime. When the defendant disputes that he is the perpetrator of the crime charged, such third-party guilt evidence is always relevant. But the so called “direct connection doctrine” and its variants impose additional burdens that a defendant must meet before this relevant evidence will be admitted. This disfavored treatment “the ‘direct connection doctrines’” stems from discredited and abandoned concepts of evidence law, and is out of step with the Federal Rules of Evidence and modern evidence codes. They wrongly transfer credibility questions from the jury to the judge and raise minimal FRE 403-type dangers to justify their systematic exclusion. Moreover, the direct connection doctrines unconstitutionally interfere with the defendant’s right to present a complete defense. They lack any non-arbitrary justification and cannot be logically reconciled with the fundamental principles that the prosecutor bears the entire burden of proof, and that a jury may acquit based on only a reasonable doubt.



Thinking About What We Do: Cost Benefit Of Sentencing Practices

posted by Judge_Burke @ 15:30 PM
January 11, 2016

Michael Tonry is a professor at University of Minnesota Law School. He is among the nation’s academic elite when it comes to thinking about crime and punishment. He has posted The Fog Around Cost-Benefit Studies of Crime and Punishment May Finally Be Clearing: Prisoners and Their Kids Suffer Too (Criminology & Public Policy (Forthcoming)) on SSRN.

Here is the abstract:

Cost-benefit and cost-effectiveness studies of crime control and punishment have proliferated since the late-1980s. Especially in relation to crime prevention programs and punishment policies they have been hugely, and regrettably, influential. “Regrettable” because many have relied on exaggerated estimates of “intangible costs” of victimization so unrealistically high that that almost any sanctioning policy no matter how severe could be shown to be effective. Likewise, almost any prevention program estimated to have prevented rapes or robberies could be shown to generate benefits in excess of costs. Estimates for rape and homicide were greatly exaggerated because they were initially based on jury damage awards in civil law suits, the right hand tale of any crime distribution because a successful lawsuit depends on the presence of an egregious crime and one or both of a highly sympathetic victim and a wealthy or well-insured defendant. The latter are not common characteristics of rape and homicide defendants. More recent studies have relied on statistical life valuations ranging from $0.7 to 26.4 million, a range so wide that any number chosen is inherently arbitrary. Recent work, however, has shown that studies relying on estimates of intangible victim costs are fundamentally flawed for the reasons described and others.



How Will They React When They Get Reversed?

posted by Judge_Burke @ 15:30 PM
January 8, 2016

Maine is a small state with a very good judiciary.  Now Maine is doing something atypical for a Supreme Court: Maine’s supreme court justices are planning to do their part to ease a backlog of felony cases.

The justices are going to serve as trial court judges this spring to try to help reduce the backlog of pending criminal cases. Mary Ann Lynch, the court information officer for the Maine court system, said that although the overall criminal docket is actually down in Maine, the number of felony cases has grown.  Maine, like many states, is seeing drugs — particularly heroin and alcohol — playing a significant role in criminal behavior.

“Someone can be charged with shoplifting, but you find out they’re shoplifting because they’re drug addicts. It’s amazing the correlation with crimes, drugs and alcohol,” she said.

This isn’t the first time supreme court justices have sat as trial judges.  They did at least once before, Lynch said.

Details are still being sorted out but rumor has it that many Maine trial court judges are anxiously awaiting to see the reaction of the supreme court justices when they get reversed for “abusing discretion.”



Confessions of Children

posted by Judge_Burke @ 21:54 PM
January 7, 2016

Thomas D. Lyon , Lindsay Erin Wandrey , Elizabeth C. Ahern , Robyn Carbone Licht , Megan Simand Jodi Quas (University of Southern California – Gould School of Law , University of California, Irvine , University of Cambridge , University of Southern California , University of Cambridge and University of California, Irvine – Department of Criminology, Law and Society) have posted Eliciting Maltreated and Nonmaltreated Children’s Transgression Disclosures: Narrative Practice Rapport Building and a Putative Confession (85 Child Development 1756 (2014)) on SSRN.

Here is the abstract:

This study tested the effects of narrative practice rapport building (asking open-ended questions about a neutral event) and a putative confession (telling the child an adult “told me everything that happened and he wants you to tell the truth”) on 4- to 9-year-old maltreated and nonmaltreated children’s reports of an interaction with a stranger who asked them to keep toy breakage a secret (n = 264). Only one third of children who received no interview manipulations disclosed breakage; in response to a putative confession, one half disclosed. Narrative practice rapport building did not affect the likelihood of disclosure. Maltreated children and nonmaltreated children responded similarly to the manipulations. Neither narrative practice rapport building nor a putative confession increased false reports.