Archive for November, 2016

Perhaps, Just Perhaps, HOPE Probation is Not as Effective as Claimed

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

From the Washington Monthly:

In light of the  success of the Hawaii HOPE program, which brought attention to the application of Swift-Certain-Fair (SCF) principles in community corrections, and the spread of such programs nationally, the Bureau of Justice Assistance authorized a large-scale, four-site field trial (the Demonstration Field Experiment, or DFE) to examine how well such a program would do in other jurisdictions. Those results are now in – in the form of a paper by Pam Lattimore and her colleagues at the Research Triangle Institute (RTI)- and the findings are not especially favorable. It appears that HOPE probationers committed no fewer new crimes and spent on average somewhat more time confined in jail or compulsory residential treatment. The authors conclude that “HOPE/SCF seems unlikely to offer better outcomes and lower costs for broad classes of moderate-to-high–risk probationers.”

The journal decided to make the Lattimore et al. paper freely available, but chose not to do so for the other papers in the same issue, including a number of commentaries on Lattimore et al.,  two of them sharply critical.”


How to Deal With Delay in Forensic Services

posted by Judge_Burke @ 17:26 PM
November 29, 2016

There is still a backlog of requests for forensic services at crime labs around the country, but it’s much smaller than it was in 2009, according to the Bureau of Justice Statistics. But, as illustrated by the response of a Utah judge — who was frustrated over a lack of DNA results from the state crime lab — the issue of forensic delay is serious. The Utah judge said if the results aren’t complete by next month, he’ll put a crime lab employee behind bars. (It is not clear that the jail has facilities to allow the forensic scientists to continue their DNA work.)

Christopher Lee Monson has been in jail for the past 13 months, after prosecutors in Davis County charged him with rape and attempted kidnapping in connection with an alleged assault of his ex-girlfriend last October.

A seven-day trial had been scheduled for next month, but Monson’s attorney, Mary Corporon, told 2nd District Judge Thomas Kay in a mid-November hearing that attorneys still have not received the DNA results of a rape kit that was completed last year.

She told Kay that she doesn’t know if the evidence will help or hurt Monson’s defense — but said she can’t go forward with the trial without the results, according to a recording of the court hearing.




View Full Story from The Salt Lake Tribune here  


What Respect Should a Court Give to Elected Officials?

posted by Judge_Burke @ 18:21 PM
November 28, 2016

Okay, before you answer “not very much,” perhaps a little more thought might help. The Boston Herald reports that Attorney General Maura Healey promised to “vigorously oppose” a Texas judge’s order for her to testify in a deposition relating to her office’s probe of Exxon Mobil’s climate change policy and said she has no plans to visit the Lone Star State for the Dec. 13 hearing.

“Our position in this ligation is that the authorities in Texas, and specifically the federal court down there, has no jurisdiction over state attorneys general and the work of their offices,” Healey told reporters today at the State House. “It’s been disappointing to see Exxon fight the request for basic information. Our job as attorneys general is to be able to ask questions.”

Healey launched her probe of Exxon Mobil’s research in April, arguing the oil giant was deceiving consumers and investors. Exxon Mobil filed for an injunction — which Healey’s lawyers have moved to dismiss — to stop her on First Amendment and other grounds.

Judge Ed Kinkeade late last week ordered Healey, along with New York AG Eric Schneiderman, to answer questions in a Dallas courtroom deposition December 13.

“We are vigorously opposing any order to testify or produce discovery,” Healey said. “We believe we are on strong legal ground, not only with respect to the questions that we asked, but also to the position that this court has no jurisdiction over us.

“In simple terms, what the court has done is inappropriate,” the AG added.

Asked whether Healey has plans to travel to Texas for the deposition, she replied, “No, I don’t and we will take it up on appeal.”

Kinkeade has noted Exxon Mobil has charged Healey with attempting “to satisfy a political agenda,” and said in his order he wants to know more about what is behind her probe before he finds for either side.

Whether Attorney General Healey has a “political agenda” isn’t reasonably in dispute. She is, after all, an elected political figure. She is neither the first nor the last elected Attorney General who has started inquires relating to deceptive practices.

So, to the point:  Should a Federal judge interfere with an ongoing or incipient investigation by requiring the Massachusetts Attorney General to travel to his courtroom for a deposition? Maybe? How about requiring the next Attorney General to appear in a Federal Judge’s courtroom for a deposition? After all, he is just an appointed figure…but an important, busy guy…so maybe whether you are elected pursuing a “political agenda” or appointed is not the proper question. So, how about a state court judge from Colorado who tells Attorney General Sessions “show up in my courtroom so I can find out why you are messing with our legalized marijuana laws”?

Tricky stuff, which suggests maybe judges needs to be cautious in this arena. 


If You Are Innocent (Really Innocent) Why Plead Guilty

posted by Judge_Burke @ 15:30 PM
November 23, 2016

From the Marshall Project:

When someone is innocent of a crime, it seems safe to assume that that person would fight his case. But as the Associated Press pointed out, the opposite often happens. Out of 157 exonerations last year, 68 involved defendants who had pleaded guilty, a number that reflects just how overwhelmed our criminal justice system has become.

“For a long time, it was our country’s crown jewel, built on the principle that it was better that 10 guilty go free than one innocent be wrongfully convicted,” one defense attorney says. “Now sadly, the system accepts and even encourages innocent people to plead guilty.”

Alysia Santo


There is a lot of good new material on the procedural fairness web site!

Check it out here.  


Reflecting on the Role Judges Play in Dealing with Collateral Consequences

posted by Judge_Burke @ 15:30 PM
November 18, 2016

Up until the last decade, many judges and appellate courts gave little attention to collateral consequences. Indeed there are many appellate courts who ruled that failure to advise on the collateral consequence of deportation was no big deal (except, of course. to the deportable defendant). Since the decision in Padilla v. Kentucky, 559 U.S. 356 (2010), appellate courts and judges have given much more thought to collateral consequences, as illustrated by an essay written by Nora Demleitner.

Judicial Challenges to the Collateral Impact of Criminal Convictions:  Is True Change in the Offing? is the title of this notable new essay.  Here is the abstract:

Judicial opposition to disproportionate sentences and the long-term impact of criminal records is growing, at least in the Eastern District of New York.  With the proliferation and harshness of collateral consequences and the hurdles in overcoming a criminal record, judges have asked for greater proportionality and improved chances for past offenders to get a fresh start.  The combined impact of punitiveness and a criminal record is not only debilitating to the individual but also to their families and communities.  A criminal case against a noncitizen who will be subject to deportation and a decade-long ban on reentry and three different requests for expungement will demonstrate how three federal judges struggled with the long-term effects of the current sentencing and collateral consequences regime.  These cases exemplify both judicial creativity and judicial impotence, as the courts have to call upon the support of other actors within the executive and legislative branches for change, in these individual cases and systemically.

These judicial critics of the current approach argue within an emerging normative framework that is coming to dominate the societal discourse on punishment.  Increasingly some offenders are deemed “worthy” of receiving our assistance in reintegration.  They are generally nonviolent first offenders, those with an unblemished record save for the offense of conviction, those who have been gainfully employed or desperately want to work, and those who have cared for their children.  They present no danger to the community, and their continued punishment may negatively impact them, their surroundings, and ultimately the country.  On the other hand, those labeled violent or sex offenders or terrorists are being considered dangerous, unredeemable, and deserving of the harshness the criminal justice system has brought to bear on them.  The specific categorization of offenses, the definitions of terms, and the categorization of offenders remain fluid, contingent, and subject to constant revision.  Still, these judicial efforts expand on the incipient efforts at full reintegration of some of those with a criminal record. Whether their challenges will resonate with their colleagues and in other branches of government remains to be seen.


Governing Magazine Names Judge Steve Leifman as Public Official of the Year

posted by Judge_Burke @ 15:30 PM
November 17, 2016

Each year, Governing Magazine names several public officials of the year. It is quite an honor for a judge (I received the award in 2004). United States Senators, Governors, and Mayors of the nation’s largest cities are chosen, but frankly not many judges are recipients.

Governing explained why Judge Leifman was selected:

In 1973, Steve Leifman was a college student interning for a Florida state senator in Tallahassee. One day, the office received a letter from a constituent claiming that her son was being held at a state psychiatric hospital over the family’s objections. Leifman was sent to investigate. When he arrived at the hospital, staff showed him to the patient’s room. There Leifman found the young man shackled to a bed. He was enormously overweight: Hospital staff had been injecting him with Thorazine, an antipsychotic medication that causes weight gain. Thorazine can work as a treatment for psychosis. But the young man strapped to the bed was not psychotic. He was autistic.

Leifman was deeply shaken. Then a volunteer took him down to the basement to see where the truly psychotic patients were held. Eventually they reached a metal cage where a guard was hosing feces off several naked men. “It was one of those experiences that you never forget,” says Leifman. “The only thing I could think of while I was standing there was, ‘We treat animals better in the zoo.’”

Florida eventually closed most of its state mental hospitals. But when Leifman, a former public defender, became a county court judge in 1995, he realized where most of the patients had gone — to jails and prisons. In Miami-Dade County, which has the highest rate of mental illness in the entire nation, one-fifth of all the arrests involved people with mental problems. The Miami-Dade jail was the biggest psychiatric care facility in the state of Florida. Every few months saw incidences in which area law enforcement officers shot and killed someone who was suffering from mental illness. 

Leifman set out to change this. He developed a “crisis intervention training” program to teach police how to handle people with mental disease. Working with area law enforcement, mental health providers and elected leaders, he created the Criminal Mental Health Project (CMHP), which diverts the mentally ill out of the criminal justice system and into community treatment. In 2004, Leifman and his allies persuaded Miami-Dade County voters to approve a $21 million bond issue to convert a shuttered jail into a mental health-care facility. This year, the county and Jackson Memorial Hospital approved another $20 million for a new state-of-the-art facility, with construction scheduled to start in 2017. In June, Gov. Rick Scott signed a law that requires communities across the state to develop CMHP-style models of coordinated care. 

Many communities now try to keep people with mental illnesses out of the criminal justice system. What makes the Miami model distinctive, The New England Journal of Medicine noted in an article hailing Miami as a national model, is “a comprehensive, coordinated response to what’s recognized as a shared community problem.” Leifman is now working with the American Psychiatric Association Foundation, the National Association of Counties and the Council of State Governments on a new initiative, Stepping Up, which seeks to bring the Miami model to places across the country.

“The most exciting part of all of this is that people are recovering; they are getting their lives back,” says the 57-year-old Leifman. “Communities are saving money and improving public safety in the process. It doesn’t get better than that.” 



Improving the Public’s Trust and Confidence
in the Judiciary


Register before December 31st and take $100 off the registration fee! You don’t want to miss the beautiful landscape of Portland, Oregon this February or any of the education being offered at the Midyear Conference. Join your fellow NACM members for two days of knowledge including the opening plenary session on Community Engagement in the State Courts. Speakers from the National Advisory Board and from the Arkansas Administrative Office of the Courts will provide NACM members with an update on this important initiative, which is working to develop tools for courts to engage with minority and disadvantaged communities, ensure equal access to justice, and build public trust and confidence in the judiciary.

Want to know more about NACM’s new Guide that was just published? Join the conversation in the session about User-Friendly Courts Guide: An Essential Resource for Court Managers Seeking to Enhance Public Trust and Confidence. The recent CCJ/COSCA resolution calling for meaningful access to justice for all will be discussed at the session Our Changing Community: Trust and Confidence in a Time of Shifting Demographics. These are just a few highlights of the education being offered. Check out the full agenda and while you plan, don’t forget to attend the new social hour on Monday night in the exhibit hall!


Reminder that the deadline for submitting session ideas for the National Association for Court Management (NACM) and the International Association for Court Administration(IACA) Annual Conference next July is Monday, November 28th! Need more information? Check it out!


For Those Who Cannot Wait to Hear Professor Erwin Chemerinsky

posted by Judge_Burke @ 16:43 PM
November 15, 2016

The highlight of the American Judges Association Annual Conference is the appearance of Professor Erwin Chemerinsky and his analysis of the recent United States Supreme Court term.

If you cannot wait, you can access the November 2016 issue of the Harvard Law Review via this link. It is the annual U.S. Supreme Court Term-in-review issue.


Sentencing Error

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

Reid K. Weisbord and George C. Thomas III (Rutgers Law School and Rutgers Law School) have posted Judicial Sentencing Error and the Constitution (Boston University Law Review, Vol. 96, No. 5, 2016) on SSRN.

Here is the abstract:

Much recent scholarship has sharply criticized the pervasive phenomenon of wrongful convictions, but the literature has overlooked an important related injustice: inaccuracy in criminal sentencing. This Article provides the first comprehensive scholarly treatment of judicial sentencing error, which has become widespread in the modern era of both ad hoc revision to criminal codes and increasingly complex criminal sentencing systems that often lack internal coherence or sensible statutory organization. Although nearly always the product of human error, the problem of judicial sentencing error is more aptly characterized as systemic because sentencing judges often face ever-changing, overlapping statutory requirements contained in separate parts of the criminal code. We identify both the source and harmful consequences of judicial sentencing error, and then examine constitutional principles implicated by the untimely correction of an erroneous sentence. Focusing particularly on a defendant’s interest in finality, we argue that the constitutional guarantees of substantive due process and protection against double jeopardy under the Fifth Amendment should be construed to limit the time to correct an erroneously lenient sentence, with the Double Jeopardy Clause supplying the more potent limiting principle and objective legal standard. We conclude that — by according respect for principles of finality in criminal sentencing — the law could create an effective institutional incentive for the State to ascertain the correctness of sentencing orders at or near the time of punishment, thereby preventing the harm and injustice that occur when the defendant’s reasonable expectation of finality has been frustrated for the legitimate but not indomitable sake of accuracy.