Archive for April, 2016

The Effects of Parental Incarceration on Children

posted by Judge_Burke @ 14:30 PM
April 29, 2016

A new report from the Annie E. Casey Foundation examines the toll of parental incarceration. Currently 7% of children in the United States have experienced the incarceration of a parent. A Shared Sentence: The Devastating Toll of Parental Incarceration on Kids, Families and Communities offers commonsense proposals to address the increased poverty and stress that children of incarcerated parents experience. Along with the report, the Annie E. Casey Foundation’s recent CaseyCast explores the stigmas, struggles, and supports shaping this issue and how parental incarceration affects not just kids and their families — but entire communities.


Jail: The Punishment for Poverty

posted by Judge_Burke @ 14:30 PM
April 28, 2016

From Judge Marcia Morey, in The News & Observer:

For some judges, presiding over traffic infractions cases is like watching paint dry. Other than more serious offenses like driving while impaired, the seemingly never-ending line of exasperated drivers lament to the judge their bad luck at getting caught.

The “speeder” protests: “No way I was going that fast.” Drivers with unfastened seat belts claim: “That cop couldn’t have seen through my window.” And the driver with an expired tag or registration resigns aloud: “Oops.”

Judges appear to be like Walmart cashiers endlessly repeating, “That’ll be $25 fine and $180 cost of court. Have a nice day, next …” The courtroom atmosphere has a faint presence of “justice” and feels more like a Duke Power bill collection office.

One day, as I presided over traffic court, Walter Smith (not his real name, but an actual case) appeared in front of me charged with driving on a revoked license. 

His license was revoked because he failed to pay a speeding ticket in 2013. In North Carolina, failure to pay a court-ordered traffic fine will result in an automatic suspension of a driver’s license. After 20 days went by and he could not pay the $180 court costs and $50 fine, the Department of Motor Vehicles automatically revoked his license. 

On March 1, Mr. Smith now had two problems: His old unpaid ticket and his license suspension. Appearing in front of me, he requested a public defender. I told him, I could not appoint him one, since it was the lowest level misdemeanor and that two years ago, the General Assembly changed the law whereby people charged with Class 3 misdemeanors were not eligible for court-appointed lawyers. I understood his frustration, but explained that he had to either hire his own lawyer or represent himself.

“Your Honor,” he protested, “I got picked up while driving to the grocery store. I was taken to jail because I didn’t pay that old ticket and y’all yanked my license. I have heart disease and can’t work. Now do you really think I can afford to hire my own lawyer? I need some help here.”

Walter Smith was standing in front of me in desperation, and there was nothing I could do to help him with his plea. I said, “Sir, I am very sorry. I have to follow the law which does not allow me to appoint you and attorney.

In a nutshell:  Jail became the punishment for poverty.


Read the full commentary here.


Race-Based Policing

posted by Judge_Burke @ 14:30 PM
April 27, 2016

Bill Ong Hing (University of San Francisco – School of Law) has posted From Ferguson to Palestine: Disrupting Race-Based Policing (Howard Law Journal, Vol. 59, 2016 (Forthcoming)) on SSRN.

Here is the abstract:

Since Michael Brown’s killing, “Ferguson” has become the battle cry of embattled black communities targeted by over-policing and activists protesting racist policing. The battle cry has been all too important, unfortunately, as more than a dozen other police on black shootings occurred over the next several months. The story has become all too familiar. A traffic stop or a call about someone acting out. The target might answer respectfully, blandly, or with some attitude. He or she might sprint to escape, sit still, or glance away with attitude. Whatever the trigger, the cop’s violent reaction can end with another unarmed black man or woman shot in the head.

This article is based on an understanding that police in many parts of the country often are guilty of abusing their authority in a racist manner. The over-policing of African American communities in many respects can be traced to the “broken windows” model of policing. The model focuses on the importance of disorder (e.g. broken windows) in generating and sustaining more serious crime. The problem is that this approach has evolved into a zero-tolerance mentality in the cop-on-the-street, manifested in constant harassment of young black males.

Another problem is Urban Shield, a controversial law enforcement training and weapons expo held in Alameda County every year, where companies that make military-style weaponry market their products to local police and fire departments. Urban Shield is coordinated by the Urban Areas Security Initiative, a key program in the extreme militarization of police departments seen in Ferguson, Baltimore, and many other black communities nationwide. In short, Urban Shield also inculcates law enforcement officials with a hard core enforcement mentality.

Broken windows policing and Urban Shield represent disruptions in how police work is done. Disruption (a term we may be more familiar with in the technology world) literally uproots and changes how we think, behave, do business, learn and go about our day-to-day. The question for us today is whether we can offer disruptive alternatives to policing that offer real public safety in a manner that is not racist.

Black Lives Matter and others are working on disruptive alternatives to create true community policing that is about public safety for all. Their rebellious method of organizing recognizes that meaningful, lasting change can only come about through collaboration with allies with common goals and experiences. Working with the labor movement, immigrant rights groups, Latino and Asian American organizations, and pro-Palestinian leaders represents a strong foundation for collective change. What are the disruptive approaches that will result? More civilian monitoring of the police? Training civilians to be first responders? Better training of police officers in de-escalation techniques? Better integration of police forces? Or something much more innovative and unconventional that is yet to be described?


Thoughtful Words from Judge Edward Spillane

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

Judge Edward Spillane is the presiding judge of the College Station Municipal Court and president of the Texas Municipal Courts Association. Judge Spillane  has a commentary  in the Washington Post. It is a short, but powerful reminder to judges that we can do better.

In part, the commentary says: 

What to do with these cases? In Tate v. Short , a 1971 Supreme Court decision, the justices held that jail time is not a proper punishment for fine-only criminal cases, citing the equal protection clause of the 14th Amendment. But in many jurisdictions, municipal judges — whether they’re overworked, under pressure to generate revenue through fees, skeptical of defendants’ claims to poverty or simply ignorant of the law — are not following the rules. As a result, far too many indigent defendants are cited for contempt of court and land behind bars for inability to pay.

There is another way, and I’ve been experimenting with it in my own courtroom . . . All judges want to uphold the rule of law in the communities we serve, but too often we can get lost in the day-to-day business of running a court; we ignore the consequences of what we do. An arrest can cost a citizen his or her job, dignity and security. Alternative sentencing is a way to achieve what we should all want: an end to criminal behavior.


The Ordering of Costs Against the Crown

posted by Judge_Burke @ 14:30 PM
April 25, 2016

If there is a more prolific Canadian judge than Judge Wayne Gorman, I am not certain who that might be. The decision he writes regarding ordering costs against the Crown is no doubt of interest to Canadian judges, but it is also an issue….albeit rare…that United States judges might also think about or confront.

In R. v. Fercan Developments Inc., 2016 ONCA 269, April 14, 2016, a judge of the Ontario Court of Justice dismissed an application for forfeiture of property brought by the Crown pursuant to the provisions of the Controlled Drugs and Substances Act.  In addition, the application judge issued an order of costs against the Crown in the amount of almost one million dollars. 

The Appeal:

The Crown submitted that the application judge “(i) did not have the jurisdiction to award costs in this case; (ii) erred in his conclusion about the applicable test; (iii) erred in finding that the conduct of the Crown met the applicable test; and (iv) awarded an amount that was excessive.”

The Ontario Court of Appeal:

The Ontario Court of Appeal noted that although “they are rare, cost awards have a long and established history as a criminal law remedy…(i) where there has been a Charter violation; (ii) where there has been Crown misconduct; and (iii) where there are exceptional circumstances.”

The Court of Appeal concluded that “the application judge had the jurisdiction to award costs, identified the correct test, and did not commit any reviewable error. I would, therefore, dismiss the appeal.”

Did the application judge have the power to award costs against the Crown?

The Court of Appeal held that “a provincial court [judge] hearing a CDSA forfeiture application has an implied power to award costs in appropriate circumstances” for three reasons: (at paragraphs 50 to 55):

First, that power is derived from the authority, possessed by every court of law, to control its own process… A statutory court also has the power to control its own process. That power is necessarily implied in a legislative grant of power to function as a court of law.

Second, the breadth of a provincial court’s mandate under the CDSA suggests that it has an implied power to award costs.

Third, given the statutory context in which a provincial court hears forfeiture applications, this implied power is reasonably necessary for it to discharge its mandate in a fair and efficient manner.

Did the application judge apply the wrong test for determining when costs should be awarded against the Crown?

The application judge held that costs are appropriate where there has been a “marked and unacceptable departure from the reasonable standards expected of the prosecution.” The Court of Appeal concluded that “the application judge identified the correct standard: in the context of a forfeiture application under the CDSA, a court can award costs when there has been a marked and unacceptable departure from the reasonable standards expected of the prosecution” (at paragraph 71).


The Ontario Court of Appeal concluded that the application judge did not err in awarding costs or in the amount ordered (at paragraph 157):

…in the circumstances of this case, I cannot say that the costs awarded were excessive. The Crown forced three separate respondents to proceed through a lengthy forfeiture application and a number of related motions. As noted by the application judge, the forfeiture application was wholly and obviously meritless from the beginning. The properties at issue, which the Crown would have obtained if successful, were valuable. As such, the objectives of both deterrence and denunciation justify a high award in this case and, therefore, I cannot conclude that the application judge’s award was unnecessarily excessive.


It Seems Oh, So Simple: Invoking the Right to Counsel

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

Kit Kinports (Pennsylvania State University, Penn State Law) has posted What Does Edwards Ban?: Interrogating, Badgering, or Initiating Contact? (Northern Kentucky Law Review, Forthcoming) on SSRN.

Here is the abstract:

The suspects who receive the most protection from Miranda today are the minority who actually assert their rights, particularly those who invoke the right to counsel. Michigan v. Mosley requires the police to “scrupulously honor” the rights of suspects who wish to remain silent, and the Edwards v. Arizona line of cases provides even greater safeguards to those who ask for a lawyer. Precisely what bars Edwards erects has been the subject of some controversy, however, as the Supreme Court for many years fluctuated between describing Edwards as simply prohibiting the police from interrogating suspects and taking the broader view that Edwards prevents law enforcement officials from even approaching suspects in ways that do not qualify as “interrogation” for purposes of Miranda.

Unsurprisingly, the mixed signals coming from the Supreme Court generated a division among the lower courts, a conflict that was seemingly resolved in favor of the broader interpretation by the Court’s 2010 opinion in Maryland v. Shatzer. In dictum in Shatzer, the majority took the position that Edwards bars not just interrogation, but also “subsequent attempts” at interrogation, “requests for interrogation,” and “any efforts to get [the suspect] to change his mind.” Despite Shatzer, however, the lower courts continue to be divided.

This contribution to a symposium honoring the fiftieth anniversary of Miranda discusses the post-Shatzer record on the scope of Edwards, criticizing the courts that have ignored Shatzer’s straightforward language and continue to limit Edwards to circumstances where police conduct rose to the level of “interrogation.” In defending the broader interpretation of the Edwards prohibition, the Article concludes that Shatzer’s conception of Edwards’ reach is more faithful to the Court’s opinion in Edwards itself as well as to the policy considerations underlying the Edwards line of cases. The Article therefore advocates that cases involving post-invocation confessions be analyzed by asking which party reinitiated the conversation, applying the same standard of initiation to both the suspect and the police. Under this approach, comments made by a suspect that would be considered initiation and thereby would remove her from the Edwards shield would likewise be treated as initiation when made by law enforcement officials and thus would invalidate the suspect’s subsequent waiver of Miranda.


The Canadian Supreme Court Rules on Judicial Discretion

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

The Globe & Mail reports:

The Supreme Court of Canada has sounded a death knell for mandatory minimum jail sentences passed by the former Conservative government, indirectly sending a message to the Liberal government to get on with the job of undoing Harper-era laws that put judges in a sentencing straitjacket.

In two separate rulings that stress the importance of judges’ discretion, the court struck at the heart of prime minister Stephen Harper’s crime agenda.

In the first one, it said a mandatory minimum sentence of one year for drug traffickers who have a previous trafficking conviction is cruel and unusual punishment, and therefore unconstitutional. The ruling went on to say that other mandatory minimum sentences are similarly vulnerable to being struck down. The former Conservative government created 60 minimum sentences for gun, drugs, sex and other offences. Canada has the second most minimums in the world, after the United States, according to the Criminal Lawyers’ Association.

“The reality is this,” Chief Justice Beverley McLachlin, author of both rulings, wrote for the majority in a 6-3 decision. “Mandatory minimum sentences that, as here, apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are vulnerable to constitutional challenge.”

In a second case, this one unanimous, it struck down a provision of the Truth in Sentencing Act that said people denied bail because of a criminal record cannot be given extra credit for the time in custody before trial – that is, no more than one day credit for each day served. Judges routinely give those awaiting trial 1.5 days credit for each day served, after a previous Supreme Court ruling allowed them to do so, over the objections of the Harper government.”


The Supreme Court of Canada two related rulings can be  accessed here and here.


Canadian Approach to Rape Shield

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

Elaine Craig (Dalhousie University – Schulich School of Law) has posted Section 276 Misconstrued: The Failure to Properly Interpret and Apply Canada’s Rape Shield Provisions (Forthcoming Canadian Bar Review) on SSRN.

Here is the abstract:

Despite the vintage of Canada’s rape shield provisions (which in their current manifestation have been in force since 1992), some trial judges continue to misinterpret and/or misapply the Criminal Code provisions limiting the use of evidence of a sexual assault complainant’s other sexual activity. These errors seem to flow from a combination of factors including a general misunderstanding on the part of some trial judges as to what section 276 requires and a failure on the part of some trial judges to properly identify, and fully remove, problematic assumptions about sex and gender from their analytical approach to the use of this type of evidence. A lack of clarity as to how section 276 works, and the ongoing reliance on outdated stereotypes about sexual assault to interpret the provisions, are particularly problematic because trial judges continue to face applications to adduce evidence of a complainant’s sexuality activity which are inflammatory, discriminatory, and clearly excluded by section 276 of the Criminal Code. The reality that some defence counsel continue to ignore, or attempt to undermine, the legal rules dictated by section 276 heightens the need for competence, rigor, and accuracy among trial judges tasked with the adjudication of these applications. Following a brief explanation of how Canada’s rape shield regime works, four types of problems with the interpretation and application of section 276 are identified using examples from recent cases.


To Combat Texting While Driving: The Textalyzer

posted by Judge_Burke @ 14:30 PM
April 19, 2016

A study by Eerie Insurance last year showed that a third of all drivers have sent a text while driving, and the latest statistics from the National Safety Council show that in 2013, “a minimum of  27% of crashes involve drivers talking and texting.”

Given those statistics, it is understandable that legislatures might try something different to reduce texting while driving. New York is considering  legislation that would require drivers involved in accidents to turn over their cellphones to the police for roadside evaluation of whether the phone was in use at the time of the crash. The catalyst for the pending measure is the family of a man whose son was killed in a 2011 crash caused by a distracted driver.

While the idea is novel, there are those who question whether the legislation would  be constitutional under the Fourth Amendment?

Read more here.  


Wrongful Conviction in Canada

posted by Judge_Burke @ 14:34 PM
April 18, 2016

There has been a lot of press and academic interest in wrongful convictions in the United States. But, what about Canada?

Kent Roach (University of Toronto – Faculty of Law) has posted Comparative Reflections on Miscarriages of Justice in Australia and Canada ((2015) 17 Flinders Law Journal 381) on SSRN.

Here is the abstract:

This article identifies comparative scholarship as a promising way to understand the causes of and remedies for wrongful convictions. The article starts by suggesting that a string of high-profile DNA exonerations and public inquiries examining their systemic causes have led to Canadian judges and prosecutors accepting the reality of wrongful convictions more readily than most of their Australian counterparts. The next part of this article suggests that Australian legislatures have been more active than the Canadian Parliament in regulating police and prosecutorial behavior that contributes to wrongful convictions. In turn, the Canadian judiciary has been more creative in responding to the causes of wrongful convictions than the Australian judiciary. This theme is carried over to the next part which examines Australian legislative innovations such as second appeals based on fresh and compelling evidence and mechanisms for courts to conduct their own inquiries. Except for some 2002 reforms to the petition procedure, most reforms in Canada have come from the courts. They include the Supreme Court of Canada hearing fresh evidence or remitting cases to Courts of Appeal to do so and the granting of bail pending petition decisions by the executive and judicial review of such decisions. Australia and Canada can learn from each other in order to ensure that both legislatures and courts respond to wrongful convictions and that, where appropriate, there be both systemic and individual accountability for wrongful convictions.