Archive for February, 2017


posted by Judge_Burke @ 15:48 PM
February 9, 2017

Judges often make decisions framed as what is reasonable. The judge’s background, experience as a judge and, yes, implicit bias can color the result. So thinking about constitutional reasonableness is something we all ought to do. 

Brandon L. Garrett (University of Virginia School of Law) has posted Constitutional Reasonableness on SSRN. Here is the abstract:

The concept of reasonableness pervades constitutional doctrine. The concept has long served to structure common law doctrines from negligence to criminal law, but its rise in constitutional law is more recent and diverse. This Article aims to unpack surprisingly different formulations of what the term reasonable means in constitutional doctrine, which actors it applies to, and how it is used. First, the underlying concept of reasonableness that courts adopt varies, with judges using competing objective, subjective, utility-based or custom-based standards. For some rights, courts incorporate more than one usage at the same time. Second, the objects of the reasonableness standard vary, assessed from the perspective of judges, officials, legislators, or citizens, and from the perspective of individual decision-makers or general institutional or government perspectives. Third, judges may variously apply a constitutional reasonableness standard to a right, to the assertion of defenses, waivers, or limitations on obtaining a remedy for the violation of a right, or to standards of review. The use of the common term “reasonableness” to such different purposes can blur distinctions between each of these three categories of standards. The flexibility and malleability of reasonableness may account for its ubiquity and utility. Entire constitutional standards can – and have – shifted their meaning entirely as judges shift from one concept or usage of reasonableness while appearing not to change the “reasonableness” standard or to depart from precedent. That ambiguity across multiple dimensions explains both the attraction and the danger of constitutional reasonableness. In this Article, I point the way to an alternative: regulatory constitutional reasonableness, in which reasonableness is presumptively informed by objective and empirically-informed standards of care, rather than a set of shape-shifting inquiries.


What is the Right Thing to Do?

posted by Judge_Burke @ 15:31 PM
February 8, 2017

Children can do horrific things. There are children who are out of control, and it is fair for society to hold people accountable. All of this sounds straightforward. But, sentencing children for horrific acts requires the best of judges. Insight into the law and the cognitive development of children is certainly a perquisite. Among the best blogs is Professor Douglas Berman’s Sentencing Law & Policy blog. He had this thoughtful and troubling post:  

Jody Kent Lavy, who is executive director of the Campaign for the Fair Sentencing of Children, has this notable new commentary headlined “Supreme Court’s will on juvenile offenders thwarted.” Here are excerpts:

A little more than a year ago, the U.S. Supreme Court ruled 6-3 in Montgomery vs. Louisiana that Henry Montgomery — and anyone else who received mandatory life without parole for a crime committed when they were younger than 18 — was serving an unconstitutional sentence and deserved relief.

The sweeping opinion augmented three earlier decisions that had scaled back the ability to impose harsh adult penalties on youth, recognizing children’s unique characteristics made such penalties cruel and unusual. The Montgomery case made clear that the Eighth Amendment bars the imposition of life without parole on youth in virtually every instance.

But, in violation of the decision, prosecutors are seeking to re-impose life without parole in hundreds of cases, and judges are imposing the sentence anew. Hundreds of people serving these unconstitutional sentences — primarily in Louisiana, Pennsylvania and Michigan — are still awaiting their opportunities for resentencing. Henry Montgomery is among them.

I recently met Montgomery, now 70, at the Louisiana State Penitentiary in Angola, notorious as a place where most of its thousands of prisoners are destined to die. Montgomery, who is African-American, was convicted of killing a white police officer as a teenager. At the time, John F. Kennedy was president. Though his resentencing has yet to be scheduled, prosecutors say they plan to again seek life without parole.

Given last year’s ruling from the nation’s highest court, it might seem surprising that Montgomery, remorseful for the crime he committed more than five decades ago, is still languishing in prison. This is indeed outrageous, and it highlights the failings of our justice system, especially as it pertains to juveniles….

Henry Montgomery is living on borrowed time. He is a frail, soft-spoken, generous man. When it was lunchtime at the prison, I noticed that he wasn’t eating. When I asked why, he said he wasn’t sure there was enough food to go around. On the anniversary of the ruling that was supposed to bring him a chance of release, we owe it to Montgomery, as well as the thousands of others sentenced as youth to die in prison, to seek mercy on his behalf. We cannot give up until the day comes when children are never sentenced to life — and death — in prison.


So, How Much Do You Need for Reasonable Suspicion?

posted by Judge_Burke @ 15:30 PM
February 6, 2017

Officers don’t have to actually see drugs pass in an apparent hand-to-hand transaction in a high crime area to have reasonable suspicion. Reasonable suspicion isn’t a certainty. United States v. Slaughter, 2017 U.S. Dist. LEXIS 569 (W.D.Ky. Jan. 4, 2017):

The R&R labels the officers’ observation as a hand-to-hand drug transaction. Both detectives at the suppression hearing testified, however, that they did not see drugs, or anything, being exchanged, but instead observed hand movements consistent with a hand-to-hand drug transaction. (R&R 13; Hr’g Tr. 28:7-11, 37:2-5, 43:14-16). Defendant emphasizes this fact in urging that reasonable suspicion is lacking, but his argument misses the [*10] mark, as a finding of reasonable suspicion does not require certainty, and the appearance of criminal activity is enough to give rise to reasonable suspicion. See Flores, 571 F.3d at 545. Thus, the fact that the detectives did not observe what was handed to Defendant is not determinative. The detectives witnessed Scott reach into his pocket and then place his hand inside of Defendant’s car window, actions that lead the detectives to believe a drug transaction was occurring, an activity with which they are familiar through their law enforcement experience. (Hr’g Tr. 29:3-8, 37:2-5, 39:4-6, 43:14-16); see Paulette, 457 F.3d at 606 (“[T]he officers had a reasonable suspicion that [the defendant] was engaged in criminal activity based upon his hand movements consistent with drug-dealing activity, efforts to evade the police upon noticing them, and presence in a high crime area.” (citation omitted)) Therefore, the hand movements coupled with the fact that Defendant was in a high crime area would support the reasonable belief that criminal activity was occurring and thus, the officers had reasonable suspicion to seize Defendant.