Archive for October, 2016

A Change of Attitude

posted by Judge_Burke @ 15:19 PM
October 31, 2016

Americans’ views of how the criminal justice system is handling crime have shifted considerably over the past decade. Currently, 45% say the justice system is “not tough enough” — down from 65% in 2003 and even higher majorities before then. Americans are now more likely than they have been in three prior polls to describe the justice system’s approach as “about right” (35%) or “too tough” (14%).

Incarceration rates in the U.S. have soared over the past few decades, and political leaders, justice officials and reform advocates have sought criminal justice reform as a result. With this, Americans’ views of the criminal justice system have shifted with the national conversation, with less than a majority now saying the system is “not tough enough.” Although considerably higher than in the past, relatively few believe the system is “too tough.”

Views of the justice system’s toughness vary across racial and political party lines. The majority of Republicans and Republican-leaning independents say it is “not tough enough” (65%), with most of the rest describing it as “about right” (30%). Democrats and Democratic-leaning independents, on the other hand, are most likely to say the system is “about right” (42%), with the rest dividing about evenly between saying it is “too tough” (22%) or “not tough enough” (29%).

A majority of whites (53%) say the system’s handling of crime is “not tough enough,” while a third (32%) say it is “about right.” One in 10 whites say the system is “too tough.” Nonwhites — who as a group make up a disproportionate percentage of the U.S. incarcerated population — are more than twice as likely as whites to say the system is “too tough” (23%). They are also more likely than whites to say it is “about right” (40%). Meanwhile, 30% of nonwhites say the system’s handling of crime is “not tough enough.”


The full report from Gallup can be found here



Who Will Judge the Many?

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

‘Who Will Judge the Many When the Game is Through?’: Considering the Profound Differences between Mental Health Courts and ‘Traditional’ Involuntary Civil Commitment Courts

Michael L. Perlin 

New York Law School

October 27, 2016


This paper is an expansion of a presentation given by the author at the annual Therapeutic Jurisprudence Workshop at Osgoode Hall Law School, York University, Toronto, Ontario, Canada, October 15, 2016. 

There is a developing robust literature about mental health courts (MHCrts) in the United States, and researchers have begun to focus on a broad range of empirical issues, such as the extent to which defendants are competent to waive their trial rights in such settings, the significance of diversion, etc. Also, advocates and other scholars have engaged in vigorous debates about the value of these courts, and the extent to which they do or do not preserve and protect due process and civil liberties values. Finally, those who locate themselves in the therapeutic jurisprudence (TJ) movement write frequently in support of them –and other problem -solving courts in general –as the best way to optimize TJ values in the court process. But there has been virtually nothing written from the perspective of what college professors always called “Compare and contrast.” 

How are these MHCrts like or unlike the involuntary civil commitment courts which, for more than 40 years have adjudicated the question of whether individuals should or should not be committed involuntarily to inpatient psychiatric hospitals and which have been characterized as “greased runways” to such commitment? In the past, I have written about how, in these courses, adjudication takes place in “pitch darkness” in cases presided over by disinterested judges in which patients were often represented by even less-interested lawyers. We are still confronted with studies from the 1970s that showed that pro se patients had a better chance of release in some states than did those with assigned counsel. The disconnect between the prevailing “takes” on MHCrts and traditional civil commitment courts is profound. Yet, there has been virtually no commentary in the literature on that disconnect. 

In this paper, I “compare and contrast” the two, and demonstrate that the reasons that the disconnect is so total is that the courts come from utterly dissonant perspectives. MHCrts – at least the successful ones – began with the conscious goal of promoting TJ in a way that did not impinge on civil liberties; traditional civil commitment courts grudgingly gave lip service to those Supreme Court cases that established baseline due process procedures in commitment cases, and generally have shown little interest in the nuances and complexities of the cases that are being decided, a lack of interest often reflected in the work done by lawyers in those cases. I conclude that attorneys must embrace the principles and tenets of therapeutic jurisprudence as a means of best ensuring the dignity of their clients and of maximizing the likelihood that voice, validation and voluntariness – the basic precepts of TJ – will be enhanced, and further believe that a rejection of the traditional civil commitment court model and an embrace of the modern mental health court model is the single best way that this dignity can be provided to litigants in these courts. 



Do We Have an Obligation to Address Implicit Bias in Damage Cases?

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

Increasingly, judges are recognizing that implicit bias training is critically important for their own professional development. But what do we need to do to address implicit bias of jurors? Are implicit bias instructions sufficient?

According to a story in The Washington Post, “ White and male victims often receive larger awards than people of color and women in otherwise similar ­cases, according to more than two dozen lawyers and forensic economists, the experts who make the calculations. These differences largely derive from projections of how much more money individuals would have earned over their lifetimes had they not been injured — projections that take into account average earnings and employment levels by race and gender.”

The full story can be found here.



How Profoundly Sad

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

Albert Woodfox, who spent four decades in solitary confinement before his release from a Louisiana prison earlier this year, says his first impression of race relations in America is that they haven’t changed much at all since 1970.

“Everybody  has fear,” says Albert Woodfox. “Fear is the soul telling the body that it’s in danger. Some people overcome that fear. I overcame it by having a cause. That’s what the party told me:  always be honourable, always serve the people.” Woodfox, now a grizzled 69-year-old, has had more reasons to be afraid than most, and when he says that he has known “more pain and suffering than any human being should be asked to suffer,” he is not exaggerating. At the hands of the American penal and judicial system he has endured wrongful imprisonment and deprivation of basic needs to a degree that seems outlandish in an advanced democracy. Yet his experience is not unique. It is an extreme version of something inflicted on thousands of others, and it is on behalf of these others that, he says, he continues to fight.”


The full article can be found here:  THE GUARDIAN


Sir, We Want You to Open Your iPhone

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

Orin Kerr has this interesting post at The Volokh Conspiracy. It begins as follows:

There has been a lot of press coverage recently about a search warrant obtained in Los Angeles allowing the government to force people present when the warrant is executed to press their fingers and thumbs on the fingerprint sensors of any phones or computers found there to unlock them. A lot of people have wondered: Is that legal? I don’t think there’s an easy answer to that. Here’s an overview of some of the legal issues.


There are people who lie to judges. Recently, a colleague of mine had a party/mother tell him that she was not living with a registered sex offender (it was a custody dispute)…and when the other party/father said to the judge, “that is him sitting in the audience!,” the man stood up and denied that his name was Mr. Thadious Jones (i.e., the name of the live-in boyfriend). The judge had a booking photo of the registered sex offender — and although it is plausible the man was a long lost identical twin, the more likely conclusion was the judge was lied to.

There is research that concludes judges are no better than others in determining who is telling the truth. Yet trial judges inherently must make credibility findings. This case, forwarded by Judge Wayne Gorman, illustrates challenges we face in making those credibility calls:

In MacKay v. MacKenzie, 2016 PECA 16, October 14, 2016, two neighbours became involved in a boundary dispute. The trial judge found in favour of Mackay. In doing so, the trial judge indicated in his reasons that he did not believe Mr. MacKenzie and that he did not believe the evidence of Mr. MacKenzie’s wife and sons.  The trial judge found that “the entire family lied under oath.”

On appeal, the Prince Edward Island Court of Appeal reversed the trial judge’s decision.  In doing so, the Court of Appeal suggested that a trial judge “must exercise great care before branding a witness, let alone his entire family, as liars” (at paragraphs 42 and 43): 

While the trial judge has the best perspective from which to assess credibility, and such assessments are due great deference, findings must be properly grounded.  A trial judge is free to accept or reject, in whole or in part, the testimony of any witness.  Rejection of a witness’ evidence does not necessarily mean that the witness is lying.  There are any number of reasons for rejecting the evidence of one witness and accepting the evidence of another, including that the honest witness was simply mistaken.

There are indeed occasions where it may be proper and necessary for a trial judge to label a witness a liar.  This, however, is not one of them.  The judicial determination that one is a liar can have a profoundly detrimental impact on a person’s reputation.  The person, so judged, has no defence to the judicial pronouncement filed on the public record.  A trial judge must exercise great care before branding a witness, let alone his entire family, as liars.

The trial judge’s determination was based, in part, on demeanor. The Court of Appeal indicated that a “determination that a witness is a liar should be supported by a rational explanation comprised of more than observations of the demeanor of a witness” (at paragraph 55).

Finally, the Court of Appeal indicated that “an undue amount of time elapsed between the trial and delivery of the reasons for judgment” (the trial commenced on August 20, 2014, and continued on October 9 and 10, 2014.  A decision was rendered on June 10, 2015).  The Court of Appeal suggested that the delay “could reasonably be perceived as compromising the recollection of the writer about the evidence at trial” (at paragraph 58).


Are Risk Assessments Racist?

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

By far one of the best criminal law blogs is the Sentencing Law & Policy  Blog. From a recent posting:

A group of Stanford professors and students have this thoughtful new Washington Post commentary headlined “A computer program used for bail and sentencing decisions was labeled racist. It’s actually not that clear.” The piece is a must-read for everyone concerned about risk-assessment technologies (which should be everyone).  Here are excerpts:

This past summer, a heated debate broke out about a tool used in courts across the country to help make bail and sentencing decisions. It’s a controversy that touches on some of the big criminal justice questions facing our society. And it all turns on an algorithm.

The algorithm, called COMPAS, is used nationwide to decide whether defendants awaiting trial are too dangerous to be released on bail. In May, the investigative news organization ProPublica claimed that COMPAS is biased against black defendants. Northpointe, the Michigan-based company that created the tool, released its own report questioning ProPublica’s analysis. ProPublica rebutted the rebuttal, academic researchers entered the fray, this newspaper’s Wonkblog weighed in, and even the Wisconsin Supreme Court cited the controversy in its recent ruling that upheld the use of COMPAS in sentencing.

It’s easy to get lost in the often technical back-and-forth between ProPublica and Northpointe, but at the heart of their disagreement is a subtle ethical question: What does it mean for an algorithm to be fair? Surprisingly, there is a mathematical limit to how fair any algorithm — or human decision-maker — can ever be.

The COMPAS tool assigns defendants scores from 1 to 10 that indicate how likely they are to reoffend based on more than 100 factors, including age, sex and criminal history. Notably, race is not used. These scores profoundly affect defendants’ lives: defendants who are defined as medium or high risk, with scores of 5-10, are more likely to be detained while awaiting trial than are low-risk defendants, with scores of 1-4.

We reanalyzed data collected by ProPublica on about 5,000 defendants assigned COMPAS scores in Broward County, Fla. (See the end of the post, after our names, for more technical details on our analysis.) For these cases, we find that scores are highly predictive of reoffending. Defendants assigned the highest risk score reoffended at almost four times the rate as those assigned the lowest score (81 percent vs. 22 percent).

Northpointe contends they are indeed fair because scores mean essentially the same thing regardless of the defendant’s race. For example, among defendants who scored a seven on the COMPAS scale, 60 percent of white defendants reoffended, which is nearly identical to the 61 percent of black defendants who reoffended. Consequently, Northpointe argues, when judges see a defendant’s risk score, they need not consider the defendant’s race when interpreting it….

But ProPublica points out that among defendants who ultimately did not reoffend, blacks were more than twice as likely as whites to be classified as medium or high risk (42 percent vs. 22 percent). Even though these defendants did not go on to commit a crime, they are nonetheless subjected to harsher treatment by the courts. ProPublica argues that a fair algorithm cannot make these serious errors more frequently for one race group than for another.

Here’s the problem: it’s actually impossible for a risk score to satisfy both fairness criteria at the same time…. If Northpointe’s definition of fairness holds, and if the recidivism rate for black defendants is higher than for whites, the imbalance ProPublica highlighted will always occur.

It’s hard to call a rule equitable if it does not meet Northpointe’s notion of fairness. A risk score of seven for black defendants should mean the same thing as a score of seven for white defendants. Imagine if that were not so, and we systematically assigned whites higher risk scores than equally risky black defendants with the goal of mitigating ProPublica’s criticism. We would consider that a violation of the fundamental tenet of equal treatment.

But we should not disregard ProPublica’s findings as an unfortunate but inevitable outcome. To the contrary, since classification errors here disproportionately affect black defendants, we have an obligation to explore alternative policies. For example, rather than using risk scores to determine which defendants must pay money bail, jurisdictions might consider ending bail requirements altogether — shifting to, say, electronic monitoring so that no one is unnecessarily jailed.

COMPAS may still be biased, but we can’t tell. Northpointe has refused to disclose the details of its proprietary algorithm, making it impossible to fully assess the extent to which it may be unfair, however inadvertently. That’s understandable: Northpointe needs to protect its bottom line. But it raises questions about relying on for-profit companies to develop risk assessment tools.

Moreover, rearrest, which the COMPAS algorithm is designed to predict, may be a biased measure of public safety. Because of heavier policing in predominantly black neighborhoods, or bias in the decision to make an arrest, blacks may be arrested more often than whites who commit the same offense.

Algorithms have the potential to dramatically improve the efficiency and equity of consequential decisions, but their use also prompts complex ethical and scientific questions. The solution is not to eliminate statistical risk assessments. The problems we discuss apply equally to human decision-makers, and humans are additionally biased in ways that machines are not. We must continue to investigate and debate these issues as algorithms play an increasingly prominent role in the criminal justice system.


Can the Police Conduct Sweeps to Clear People Off the Streets?

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

The Sixth Circuit Court of Appeals has ruled that the city of Memphis can no longer conduct sweeps to clear people off Beale Street unless public safety requires it.

U.S. District Judge Jon McCalla issued his ruling in June 2015, ending a police practice that has existed for years in which officers “sweep” the street to clear people off or push them into clubs, usually in the early morning hours of weekends.

After McCalla’s decision, the city appealed. In October 2016, the Sixth Circuit ruled.

“The jury found that the city implemented its street-sweeping policy without consideration of whether conditions throughout the Beale Street area posed an existing, imminent or immediate threat to public safety. Based on the jury’s findings, the district court found the policy unconstitutional under strict scrutiny, entered an injunction and ordered other equitable relief on behalf of the class,” the ruling read. “For the reasons set forth below, we affirm the district court.”

A primary reason the court cited was that a citizen has the right to ”travel locally through public spaces and roadways.” The city argued that the sweeps have only a minimal affect, if any, on that right.

The opinion can be found here.


The Brooking Institution has interesting short papers outlining what the next President should do. Certainly criminal justice reform is one of the issues the next President needs to deal with: 

Americans across partisan, ideological, and racial lines are rethinking the country’s criminal justice system. This is entirely appropriate—and necessary. And yet, conversations, debates, and policy prescriptions around this issue often are not rooted in sound data. All too often, convoluted and even contradictory facts are cited, undermining efforts to improve a system that is in many ways broken. In this brief, we seek to provide citizens and policymakers—including the next president—with a framework for assessing the opportunities and challenges of criminal justice reform by situating decades-long trends in crime and punishment in the appropriate historical and comparative contexts. We have compiled, and report here, the best substantiated data on five critical elements of the criminal justice system: nationwide crime rates; prison population and buildup; the costs of incarceration; and individuals killed by police.

Taken together, the facts presented here establish an evidentiary basis that will allow interested parties to approach these exceedingly complex issues from a common place of factual understanding. We conclude by examining recent legislative efforts related to criminal justice reform and urging the next president and congress to seize the opportunity afforded by contemporary bi-partisan support and public demand for action around these issues.

The future course of the American criminal justice system has come under immense scrutiny in very recent years. The White House has indicated that substantial reform would be a leading priority for President Obama’s last year in office; both chambers of congress have seen legislation introduced and debated; Americans across the country have turned their passionate attention to the issue; and the subject has been raised in all of the presidential and vice presidential debates thus far in the 2016 campaign. At times, however, the passions of both citizens and lawmakers on this issue are fueled by incomplete, inaccurate, and insufficient data. For that reason, we set out to collect and compile the best substantiated data on critical elements of the criminal justice system and to provide an informed and common framework for understanding the state of the system today, and the proposed reforms that will shape its future.


The full report can be found here.  



The Right to Speedy Sentencing

posted by Judge_Burke @ 14:30 PM
October 18, 2016

Last term, the United States Supreme Court ruled that there is no constitutional right to a speedy sentencing. It might be good public policy (speed to disposition impacts recidivism, and reducing the number of appearances per disposition impacts efficiency), but good public policy and a constitutional right are different.

Carissa Byrne Hessick (University of North Carolina (UNC) at Chapel Hill – School of Law) has posted Betterman v. Montana and the Underenforcement of Constitutional Rights at Sentencing (Ohio State Journal of Criminal Law, Vol. 14, No. 1, Forthcoming) on SSRN.

Here is the abstract:

This past Term, in Betterman v. Montana, the U.S. Supreme Court took up the question whether the Sixth Amendment’s speedy trial guarantee applies to sentencing proceedings. In a unanimous opinion by Justice Ginsburg, the Court held that it does not. Perhaps in order to achieve unanimity, Betterman left open important questions, which may ultimately allow defendants, at least in some situations, to demand a speedy sentencing. But, as this short commentary explains, Betterman represents an unfortunate example of the courts’ tendency to underenforce constitutional rights at sentencing.