Archive for March, 2017

Can Algorithms Improve Justice…or Make it Worse?

posted by Judge_Burke @ 14:30 PM
March 31, 2017

When it Comes to Justice, Algorithms are Far From Infallible

by Erika Posey


Early on in Tuesday’s confirmation hearing, Neil Gorsuch suggested that the judiciary may be in danger of automation. When asked how political ideology can affect judicial decision-making, Judge Gorsuch joked that “they haven’t yet replaced judges with algorithms, though I think Ebay is trying, and maybe successfully.” The joke fell flat, but Judge Gorsuch isn’t completely wrong – though Ebay doesn’t seem to have anything to do with it.

Algorithms already play a role in courtrooms across the nation. “Risk assessment” software is used to predict whether or not an offender is likely to commit crimes in the future. The software uses personal characteristics like age, sex, socioeconomics, and family background to generate a risk score that can influence decisions about bail, pre-trial release, sentencing, and probation. The information fed into the system is pulled from either defendant surveys or criminal records.

Algorithms also help determine who ends up in the courtroom in the first place. Police are investing in “predictive policing” technology — powerful software that uses data on past crime to forecast where, when, and what crimes might occur. Police use the predictions to make deployment decisions. Some software even claims to predict who may be involved in a future crime. A pilot program in Chicago used software to identify roughly 400 people likely at high risk of being involved in violent crime in the next year. Law enforcement notified the individuals and followed up with them in an attempt to cut the city’s crime rate. Facial recognition algorithms are already used with surveillance footage, and emerging technology will allow real-time facial recognition with police body cameras.

Proponents of the tools laud the software’s potential to cut costs, drive down prison populations, and reduce bias in the criminal justice system. The expensive and prejudicial outcomes of our human-driven criminal justice system are well documented. As Judge Gorsuch lamented, “I’m not here to tell you I’m perfect. I’m a human being, not an algorithm.”

Unfortunately, the algorithms aren’t perfect either. A ProPublica analysis of a widely-used risk assessment algorithm found that only 20% of people the software predicted would commit violent crimes went on to do so in the two years after the assessment was conducted. When all crimes – including misdemeanors – were taken into account, the algorithm was only slightly more accurate than a coin flip in predicting recidivism rates. Worse still, it was nearly twice as likely to mislabel black defendants as high risk than white defendants.


For the full article, go here.




Thinking About Civil Forfeiture

posted by Judge_Burke @ 16:53 PM
March 30, 2017

Very few AJA members are in the federal court system, but virtually all states have some form of civil forfeiture process. Two recent events suggest that the debate about civil forfeiture might be something that should get more attention.

Justice Clarence Thomas (not a notable liberal) issued a dissent raising concerns about the process, and the Justice Department’s Inspector General raised questions.

First, the Inspector General. The Washington Post reported:

The Drug Enforcement Administration takes billions of dollars in cash from people who are never charged with criminal activity, according to a report issued today by the Justice Department’s Inspector General.

Since 2007, the report found, the DEA has seized more than $4 billion in cash from people suspected of involvement with the drug trade. But 81 percent of those seizures, totaling $3.2 billion, were conducted administratively, meaning no civil or criminal charges were brought against the owners of the cash and no judicial review of the seizures ever occurred.

That total does not include the dollar value of other seized assets, like cars, homes, electronics and clothing.

These seizures are all legal under the controversial practice of civil asset forfeiture, which allows authorities to take cash, contraband and property from people suspected of crime. But the practice does not require authorities to obtain a criminal conviction, and it allows departments to keep seized cash and property for themselves unless individuals successfully challenge the forfeiture in court. Critics across the political spectrum say this creates a perverse profit motive, incentivizing police to seize goods not for the purpose of fighting crime, but for padding department budgets.

Law enforcement groups say the practice is a valuable tool for fighting criminal organizations, allowing them to seize drug profits and other ill-gotten goods. But the Inspector General’s report “raises serious concerns that maybe real purpose here is not to fight crime, but to seize and forfeit property,” said Darpana Sheth, senior attorney of the Institute for Justice, a civil liberties law form that has fought for forfeiture reform.

The Inspector General found that the Department of Justice “does not collect or evaluate the data necessary to know whether its seizures and forfeitures are effective, or the extent to which seizures present potential risks to civil liberties.”  


So, the question might be: does the state in which you sit keep data?

Then, there is Justice Thomas. He said:

This petition asks an important question: whether modern civil-forfeiture statutes can be squared with the Due Process Clause and our Nation’s history.


Early in the morning on April 1, 2013, a police officer stopped James Leonard for a traffic infraction along a known drug corridor. During a search of the vehicle, the officer found a safe in the trunk. Leonard and his passenger, Nicosa Kane, gave conflicting stories about the contents of the safe, with Leonard at one point indicating that it belonged to his mother, who is the petitioner here. The officer obtained a search warrant and discovered that the safe contained $201,100 and a bill of sale for a Pennsylvania home.

The State initiated civil forfeiture proceedings against the $201,100 on the ground that it was substantially connected to criminal activity, namely, narcotics sales. See Tex. Code Crim. Proc. Ann., Art. 59.01 (Vernon Cum. Supp. 2016). The trial court issued a forfeiture order, and petitioner appealed. Citing the suspicious circumstances of the stop and the contradictory stories provided by Leonard and Kane, the Court of Appeals affirmed the trial court’s conclusion that the government had shown by a preponderance of the evidence that the money was either the proceeds of a drug sale or intended to be used in such a sale. It also affirmed the trial court’s rejection of petitioner’s innocent-owner defense. Petitioner had asserted that the money was not related to a drug sale at all, but was instead from a home she had recently sold in Pennsylvania. The court deemed this testimony insufficient to establish that she was in fact an innocent owner.

Petitioner now challenges the constitutionality of the procedures used to adjudicate the seizure of her property. In particular, she argues that the Due Process Clause required the State to carry its burden by clear and convincing evidence rather than by a preponderance of the evidence.


Modern civil forfeiture statutes are plainly designed, at least in part, to punish the owner of property used for criminal purposes. See, e.g., Austin v. United States509 U. S. 602–619 (1993). When a state wishes to punish one of its citizens, it ordinarily proceeds against the defendant personally (known as “in personam”), and in many cases it must provide the defendant with full criminal procedural protections. Nevertheless, for reasons discussed below, this Court permits prosecutors seeking forfeiture to proceed against the property (known as “in rem”) and to do so civilly. See, e.g., United States v. James Daniel Good Real Property510 U. S. 43–57 (1993). In rem proceedings often enable the government to seize the property without any predeprivation judicial process and to obtain forfeiture of the property even when the owner is personally innocent (though some statutes, including the one here, provide for an innocent-owner defense). Civil proceedings often lack certain procedural protections that accompany criminal proceedings, such as the right to a jury trial and a heightened standard of proof.

Partially as a result of this distinct legal regime, civil forfeiture has in recent decades become widespread and highly profitable. See, e.g., Institute for Justice, D. Carpenter, L. Knepper, A. Erickson, & J. McDonald, Policing for Profit: The Abuse of Civil Asset Forfeiture 10 (2d ed. Nov. 2015) (Department of Justice Assets Forfeiture Fund took in $4.5 billion in 2014 alone), (as last visited Feb. 27, 2017). And because the law enforcement entity responsible for seizing the property often keeps it, these entities have strong incentives to pursue forfeiture.Id., at 14 (noting that the Federal Government and many States permit 100 percent of forfeiture proceeds to flow directly to law enforcement); see also App. to Pet. for Cert. B–2 (directing that the money in this case be divided between the “Cleveland Police Department” and the “Liberty County District Attorney’s Office”).

This system—where police can seize property with limited judicial oversight and retain it for their own use—has led to egregious and well-chronicled abuses. According to one nationally publicized report, for example, police in the town of Tenaha, Texas, regularly seized the prop-erty of out-of-town drivers passing through and collaborated with the district attorney to coerce them into signing waivers of their property rights. Stillman, Taken, The New Yorker, Aug. 12 & 19, 2013, pp. 54–56. In one case, local officials threatened to file unsubstantiated felony charges against a Latino driver and his girlfriend and to place their children in foster care unless they signed a waiver. Id., at 49. In another, they seized a black plant worker’s car and all his property (including cash he planned to use for dental work), jailed him for a night, forced him to sign away his property, and then released him on the side of the road without a phone or money. Id., at 51. He was forced to walk to a Wal-Mart, where he borrowed a stranger’s phone to call his mother, who had to rent a car to pick him up. Ibid.

These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings. Id., at 53–54; Sallah, O’Harrow, & Rich, Stop and Seize, Washington Post, Sept. 7, 2014, pp. A1, A10. Perversely, these same groups are often the most burdened by forfeiture. They are more likely to use cash than alternative forms of payment, like credit cards, which may be less susceptible to forfeiture. And they are more likely to suffer in their daily lives while they litigate for the return of a critical item of property, such as a car or a home.


The Court has justified its unique constitutional treatment of civil forfeiture largely by reference to a discrete historical practice that existed at the time of the founding. See, e.g., Bennis v. Michigan516 U. S. 442–448 (1996). “ ‘English Law provided for statutory forfeitures of offending objects used in violation of the customs and revenue laws.’ ” Austinsupra, at 612 (quoting Calero-Toledo v. Pearson Yacht Leasing Co.416 U. S. 663, 682 (1974) ). This practice “took hold in the United States,” where the “First Congress passed laws subjecting ships and cargos involved in customs offenses to forfeiture.” 509 U. S., at 613. Other early statutes also provided for the forfeiture of pirate ships. United States v. Parcel of Rumson, N. J.Land507 U. S. 111, 119 (1993) (plurality opinion). These early statutes permitted the government to proceed in rem under the fiction that the thing itself, rather than the owner, was guilty of the crime. See Calero-Toledosupra, at 684–685; Act of Aug. 4, 1790, §67, 1Stat. 176–177. And, because these suits were in rem rather than in personam, they typically proceeded civilly rather than criminally. See United States v. La Vengeance, 3 Dall. 297, 301 (1796).

In the absence of this historical practice, the Constitution presumably would require the Court to align its distinct doctrine governing civil forfeiture with its doctrines governing other forms of punitive state action and property deprivation. See Bennissupra, at 454 (Thomas, J., concurring) (“One unaware of the history of forfeiture laws and 200 years of this Court’s precedent regarding such laws might well assume that such a scheme is lawless—a violation of due process”). I am skeptical that this historical practice is capable of sustaining, as a constitutional matter, the contours of modern practice, for two reasons.

First, historical forfeiture laws were narrower in most respects than modern ones. Cf. James Daniel Good, 510 U. S., at 85 (Thomas, J., concurring in part and dissenting in part) (noting that “ambitious modern statutes and prosecutorial practices have all but detached themselves from the ancient notion of civil forfeiture”). Most obviously, they were limited to a few specific subject matters, such as customs and piracy. Proceeding in rem in those cases was often justified by necessity, because the party responsible for the crime was frequently located overseas and thus beyond the personal jurisdiction of United States courts. See Herpel, Toward a Constitutional Kleptocracy: Civil Forfeiture in America, 96 Mich. L. Rev. 1910, 1918–1920 (1998); see also id., at 1925–1926 (arguing that founding-era precedents do not support the use of forfeiture against purely domestic offenses where the owner is plainly within the personal jurisdiction of both state and federal courts). These laws were also narrower with respect to the type of property they encompassed. For example, they typically covered only the instrumentalities of the crime (such as the vessel used to transport the goods), not the derivative proceeds of the crime (such as property purchased with money from the sale of the illegal goods). See Rumson, supra, at 121–122, 125 (plurality opinion) (Forfeiture of criminal proceeds is a modern innovation).

Second, it is unclear whether courts historically permitted forfeiture actions to proceed civilly in all respects. Some of this Court’s early cases suggested that forfeiture actions were in the nature of criminal proceedings. See, e.g., Boyd v. United States116 U. S. 616–634 (1886) (“We are . . . clearly of [the] opinion that proceedings instituted for the purpose of declaring the forfeiture of a man’s property by reason of offenses committed by him, though they may be civil in form, are in their nature criminal”); but see R. Waples, Treatise on Proceedings In Rem 29–30 (1882) (collecting contrary authorities). Whether forfeiture is characterized as civil or criminal carries important implications for a variety of procedural protections, including the right to a jury trial and the proper standard of proof. Indeed, as relevant in this case, there is some evidence that the government was historically required to prove its case beyond a reasonable doubt. See United States v. Brig Burdett, 9 Pet. 682, 690 (1835) (“The object of the prosecution against the Burdett is to enforce a forfeiture of the vessel, and all that pertains to it, for a violation of a revenue law. This prosecution then is a highly penal one, and the penalty should not be inflicted, unless the infractions of the law shall be established beyond reasonable doubt”).


Unfortunately, petitioner raises her due process arguments for the first time in this Court. As a result, the Texas Court of Appeals lacked the opportunity to address them in the first instance. I therefore concur in the denial of certiorari. Whether this Court’s treatment of the broad modern forfeiture practice can be justified by the narrow historical one is certainly worthy of consideration in greater detail.


The Exclusionary Rule

posted by Judge_Burke @ 17:49 PM
March 29, 2017

It is not always easy to apply the exclusionary rule.  The facts can be ambiguous.  The law may be ambiguous. We have excuses not to exclude evidence like “good faith” or “inevitable discovery.”  So, thinking about the exclusionary rule outside the context of a pending case is highly useful. 

Robert Belanger (Nineteenth Judicial Circuit Florida) has posted Judicial Decision Making and the Exclusionary Rule (Texas Review of Law & Politics, Vol. 21, No. 1, 2016) on SSRN.

Here is the abstract:

This article examines the factors that may influence how judges apply the exclusionary rule. When a suppression issue exists, we trust a judge to determine whether a search was unlawful, but we do not trust the judge to fashion an appropriate remedy, other than the per se exclusion of evidence. Judges may be reluctant to find Fourth Amendment violations because the only remedy for a Fourth Amendment violation is a rule of per se exclusion, a remedy that is often disproportionate to the underlying wrong. This lack of proportionality constitutes overdeterrence, so that the rule will be underenforced.



Why Courts Fail to Protect Privacy…Is it a Fair Criticism?

posted by Judge_Burke @ 14:55 PM
March 27, 2017

Bernard ChaoCatherine S. DursoIan P. Farrell and Christopher T. Robertson (University of Denver Sturm College of Law, University of Denver, University of Denver Sturm College of Law and University of Arizona – James E. Rogers College of Law) have posted Why Courts Fail to Protect Privacy: Race, Age, Bias, and Technology (California Law Review (Forthcoming)) on SSRN.

Here is the abstract:

The Fourth Amendment protects against unreasonable “searches and seizures,” but in the digital age of stingray devices and IP tracking, what constitutes a search or seizure? The Supreme Court has held that the threshold question is supposed to depend on and reflect the “reasonable expectations” of ordinary members of the public concerning their own privacy. For example, the police now exploit the “third party” doctrine to access data held by email and cell phone providers, without securing a warrant, on the Supreme Court’s intuition that the public has no expectation of privacy in that information. Is that assumption correct? If judges’ intuitions about privacy do not reflect actual public expectations, it may undermine the legitimacy of the criminal justice system and exacerbate social unrest.

Although prior research has shown that the police disproportionately target younger people and minority communities, judges tend to be male, white, educated, affluent, and older than the general population. Their intuitions may thus be systematically different. Even worse, cognitive science suggests that judges may have difficulty putting themselves into the shoes of the searched person or considering the reasonableness of the police tactics from an ex ante perspective, without knowledge about the fruits of the search.

With 1200 respondents, we conducted a large-scale survey experiment to test whether, and if so, why, contemporary Fourth Amendment jurisprudence diverges from the societal norms it purports to protect and reflect. We identify a range of privacy expectations for 18 different police practices. We use oversampling, reweighting, and randomization to investigate particular causes of this disparity between judicial and public expectations. We conclude by suggesting better ways forward, so that social science evidence can replace judicial speculation.


An Interesting Article About Bail Reform

posted by Judge_Burke @ 14:30 PM
March 24, 2017

From The PEW Charitable Trusts:

In the midst of a contentious divorce, Lavette Mayes got into a heated argument with her soon-to-be ex-mother-in-law. A couple of weeks later, Chicago Police arrested her for aggravated battery.

Up until that point, her only interaction with the legal system had been reporting for jury duty. Her new business operating a school van service was thriving. She was renting a nice house, a place she and her two children could call home. Then, in 2015, a judge slapped her with a $250,000 bail — an amount that Mayes could not afford.

After she had spent 14 months in the Cook County Jail, the Chicago Community Bond Fund, a volunteer organization, helped Mayes make bail after a judge reduced the amount. By that point, though, her business had collapsed, she’d lost her home, and her kids were traumatized. “I lost everything,” Mayes, 46, said.

Increasingly, state policymakers are looking at defendants like Mayes and reexamining the purpose of bail. Six in 10 adults in U.S. jails have not been convicted of a crime. They are locked up awaiting trial, mostly because they’re too poor to post bail. They are legally presumed innocent, but many spend months and even years awaiting trial. Often, they feel pressure to take a plea deal rather than spend more time in jail.

And policymakers are proposing changes. In Illinois, lawmakers last month introduced proposals that could eliminate bail for first-time, nonviolent offenders or abolish cash bail. In Maryland, the Supreme Court last month chose to change the state’s cash bail system significantly. In January, New Jersey began a new system of pretrial detention, in which judges can only set bail as a last resort. Lawmakers in California, Connecticut, Maryland and New York also have legislation pending that would remake their states’ cash bail systems.

A federal appeals court heard arguments in a class-action suit that challenges the constitutionality of the bail system. It involves an indigent Georgia man who was arrested for walking on the road while drunk; his bail was set at $160.

Behind many of the proposals is a growing recognition that cash bail is inequitable and isn’t effective in assuring the people who are accused actually go to court to answer the charges, said Eric Sterling, executive director of the Criminal Justice Policy Foundation, a nonprofit that advocates for changes in the criminal justice system.

“A system where you are presumptively jailed unless you can buy your freedom is a form of pretrial punishment,” Sterling said.

Bail is set to serve two purposes: to guarantee that defendants show up in court and to protect public safety by detaining those deemed potentially dangerous.

Critics say the system penalizes the poor and contributes to mass incarceration because it jails presumably innocent people simply because they can’t afford to post bail and reinforces a cycle of poverty. It also increases recidivism rates, critics say, because “low risk” defendants who have served time in jail are more likely to commit crimes upon release. A 2016 Columbia University report found that defendants who’ve been charged bail have a 12 percent higher chance of being convicted and are 6 to 9 percent more likely to be charged with another crime. 

But proponents of cash bail say the money or property involved in posting bail, often put up by family members, serves as a deterrent to skipping out of court appearances or fleeing the state or country. Without money on the line, they argue, there’s little incentive to stay and go to court.

“We’d love to know how you bring all these people back in when they don’t appear in court on these no cash bonds,” said Beth Chapman, president of the Professional Bail Agents of the United States, a trade association. 


Read the full article here.


Thinking About Jury Selection

posted by Judge_Burke @ 14:30 PM
March 23, 2017

Liz McCurry Johnson (Wake Forest University – School of Law) has posted The Practical Obscurity of the Green Screen Terminal: A Case Study on Accessing Jury Selection Data on SSRN.

Here is the abstract:

Who should care more about who jury members are – the criminal defendant facing one or the public who is the watchful eyes over the government prosecutions? The answer is both, and equally. This Article is part of a series of papers that fill a substantial gap in the literature of jury selection by providing a positive, personal account with field data on how litigates pick a jury – the building of a robust and immense data set of jury selections for felony charges disposed of by jury verdict. One reason that litigates and scholars have not previously marshaled a clear understanding of jury selection realities is that the data has been surprisingly amorphous. A series of obstacles – legal, technological, organizational – meet at a crosshair to block researchers and obscure careful analysis. This Article describes the surprising challenges that scholars face from courthouse failings in office policies to the ongoing use of out-of-date technology and litigation that flies in the face of open access. It further explains novel research techniques innovated to meet those challenges and reflects on why it might be that our government generally lets this particular public record information go dormant.

While most hold the decisions made within the courtroom in the highest regard, very little is actually known of the jury selection process. Theories and best practices engulf the academy and practicing bar, but only those entrenched in the courthouse can answer who is actually seated and who is excluded. The robust literature and academic discussions on the normative aspect of jury selection neglect these key empirical issues that government public records should be able to answer. An answer, the data, is key to the public trust of the government bodies, such as the judicial system, to open for inspection the decisions that are easily disposed of. This Article blazes the trail of data collection in jury selection. 


Can We Reform Plea Bargaining?

posted by Judge_Burke @ 16:07 PM
March 22, 2017

Jenia Iontcheva Turner (Southern Methodist University – Dedman School of Law) has posted Plea Bargaining (in Academy For Justice, A Report On Scholarship And Criminal Justice Reform (Erik Luna ed., 2017), Forthcoming) on SSRN.

Here is the abstract:

This report on plea bargaining was written for the “Academy for Justice,” a collaborative research project whose goal is “to inspire and guide reform in the federal and state systems, and to fortify these efforts with the research and analysis of top academic experts.”

Plea bargaining dominates the criminal process in the United States today, yet it remains highly controversial. Supporters defend it on the grounds that it expedites cases, reduces processing costs, and helps authorities obtain cooperation from defendants. But critics contend that it can generate arbitrary sentencing disparities, obscure the true facts, and even lead innocent defendants to plead guilty. Lack of transparency and limited judicial involvement frustrate attempts to correct flaws in the process. As policymakers and legislators prepare to tackle reform of sentencing laws and prosecutorial discretion, they should also consider reforms to plea bargaining that would make the practice fairer, more transparent, and more honest.


Save Legal Assistance for the Poor

posted by Judge_Burke @ 17:54 PM
March 21, 2017

The American Bar Association has begun mobilizing in defense of the Legal Services Corp., which would be eliminated in President Donald Trump’s recently released budget:

In addition to ABA President Linda A. Klein’s statement on Thursday emphasizing the importance of the LSC’s mission, the ABA has launched a new social media campaign in defense of the nonprofit established by Congress in 1974 to provide financial support for civil legal aid to low-income Americans.

And at the ABA Techshow 2017 on Friday, an effort to get legal services vendors to support preserving the LSC won loud applause from an overflow crowd in a Chicago Hilton ballroom.

A Friday Facebook post by the ABA Center for Professional Responsibility calls upon LSC supporters to register as “Legal Aid Defenders” on a new website,

As Klein told the ABA Journal: “Establishing justice is a founding principle of our nation and should not be denied because a person can’t afford basic representation in civil matters such as housing, domestic violence and veterans’ needs. Support for the Legal Services Corp. is bipartisan because guaranteeing representation to all is not a political issue, but an issue of fairness. It benefits every congressional district and returns far more on every dollar spent than it costs.

“The American Bar Association is urging everyone to take a minute to participate in our grassroots campaign at, which makes it easy for all who care about equality in the legal system to ask their members of Congress to provide funding for LSC,” Klein said.


Thinking About Where We Are On Custodial Interrogations

posted by Judge_Burke @ 14:30 PM
March 20, 2017

Susan R. Klein (University of Texas School of Law) has posted Transparency and Truth during Custodial Interrogations and Beyond (Boston University Law Review, Forthcoming) on SSRN.

Here is the abstract:

My goal in this symposium is not to disrespect the Warren Court Revolution. The Court’s constitutionalization of the rules of criminal procedure during the 1960s were quite clearly necessary at the time they were imposed, in large measure to end the miserably unjust treatment of African Americans living in the South, and in part to foster the values of privacy, autonomy, fairness, and protection of the innocent enshrined in the Bill of Rights but ignored by many state criminal justice actors. The three most famous and important decisions by the Warren Court were vital to the health of the criminal justice system when they were rendered. The exclusionary remedy incorporated in Mapp v. Ohio was critical in persuading peace officers to learn about and then protect Fourth Amendment values; the Miranda v. Arizona warnings seemed the only way to limit abusive police behavior at the stationhouse while still encouraging uncompelled confessions, and the right to counsel offered in Gideon v. Wainwright was essential to separating guilty from innocent defendants. Unfortunately, and perhaps somewhat ironically, doctrine concerning the Fourth and Fifth Amendments have been contorted in their definitions and subject to a constant stream of exceptions by the Burger, Rehnquist, and Roberts Courts. They have come to contribute to and in fact embody the now unnecessarily adversarial and deceptive nature of many citizen-peace officer encounters.

The upshot of our last fifty years of constitutional criminal procedure rules combined with certain historical events I describe below is that some citizens and law enforcement may view each other as the enemy. This is not useful to law enforcement’s primary purpose of protecting us from harm and separating the innocent from the guilty. What are we to do with such a messy and quite frankly depressing state of affairs? At this juncture, it might be preferable to shape rules that are less adversarial and more inquisitorial. It certainly would be an improvement to announce transparent rules. Rather than having decision rules for cases and conduct rules for officers, we need one set of clear and well publicized rules that everyone knows and follows. And that set of rules need not be the same in every jurisdiction, so long as what officers tell citizens is the truth.

Confining my remaining comments to the fifth amendment context, in Part II, I argue that the Miranda warnings, regardless of their intent and effect at the time, have become perverse and ought to be retired for five reasons. (1) They are false and deceptive. (2) They assist primarily guilty recividists and the wealthy, all other suspects waive their rights. (3) They fail to achieve either of their stated goals of “adequately and effectively” apprising suspects of their rights and regulating police conduct. Instead, suspects are confused and deceived, and the fact that the Miranda warnings were read essentially guarantees that any subsequent statements are admissible, regardless of whether they are “voluntary” within the meaning of the due process “totality of circumstances” test. (4) They fail to identify and exclude false confessions. The innocence movement has demonstrated that the majority of false confessions are from juveniles and those with mental disabilities, and the Miranda warnings are ineffective on these groups. (5) They are incompatible with historical practice and our current shared moral values. In Part III, I recommend that jurisdictions begin replacing Miranda warnings with more effective and transparent alternatives, a move I believe is permissible under current Supreme Court doctrine. I propose that mid-sized to large police departments add a new “magistrate” position, appointed through the judicial branch, to their police station staff, and supplement or replace custodial interrogation by the police with more civilized recorded questioning of felony suspects by these magistrates. Arrestees would be informed that they have no right to avoid custodial interrogation of some kind, and offered accurate descriptions of their actual options. I further suggest that the practice of producing false evidence to encourage suspects to confess be strictly prohibited, and the use of deceit during custodial interrogation be discussed and limited NY public officials and reduced to writing. Transparency in the interrogation process would be a civilizing influence and would lead to more accurate information. Allowing local legislatures to create the rules regulating interrogations would shift blame for any deceit permitted away from police officers, fostering improved relationship between law enforcement personnel and the citizens they serve.

Finally, in Part IV, I begin to imagine a world in which police official used deception only when absolutely necessary, and only with the advance agreement of local public officials. Not only would any warnings given be accurate ones, but perhaps some of the most egregious deceptive practices during interrogation would be limited. This might bleed over into undercover sting operations, as many courts are already finding ways to expand the entrapment defense. The use of predictive and community policing and other evidence-based law enforcement tools might be possible if the relationship between officers and citizens improves, especially in minority communities. Numerous practices that might be effective in ferreting out the guilty and preventing crime in the first place rely on cooperation with the community. Such cooperation is almost impossible without some transparency and trust as foundations of the relationship. Amending Miranda would be a start.


Fines & Fees Before The United States Supreme Court

posted by Judge_Burke @ 14:30 PM
March 17, 2017

The U.S. Supreme Court recently heard oral arguments in Nelson v. Colorado, a case asking if courts are required to refund the fees paid by those convicted of crimes and then exonerated. From the Associated Press:  “The case involves two people whose convictions for sexual offenses were later thrown out. One had paid about $700 toward the court fees and victim restitution while the other paid more than $4,400 in similar costs.”

The defendants are challenging a Colorado Supreme Court decision that “the defendants could not get a refund unless they proved their innocence by clear and convincing evidence in a separate proceeding.”  The Associated Press story goes on to say,”[m]ost justices hearing arguments in the case on Monday seemed concerned that refusing to refund the money violates due process rights.” Justice Elena Kagan said “it seems ‘the most natural, obvious thing in the world to say that the state’s right to that money evaporates’ when a conviction is overturned.”

Chief Justice John Roberts also said that “while the state can’t give the defendants back the time they spent in jail, ‘you can give them the money back.’”

Adam Liptak wrote for The New York Times:

Chief Justice John G. Roberts Jr. asked if the state could impose a $10,000 fine on everyone convicted of a crime and refuse to return the money if the convictions were later overturned.

Mr. Yarger said yes. Just as there is no need to pay people for the time they spend in prison after their convictions are reversed, he said, there is no need to reimburse them for fines and fees. “The assumption is that the deprivation of both the liberty and the property at the time of conviction is lawful, and that the property passes into public funds,” he said.

Incarceration is different from money, Chief Justice Roberts said. “You can’t give them back whatever time they’ve spent in jail … you just can’t do it, but you can give them the money back.” After the arguments before the Supreme Court, changes may occur regardless of the outcome of the decision.

And, David Migoya had this front page article in The Denver Post: ”Colorado official proposes refunds for exonerated defendants after harsh questions by Supreme Court; U.S. Supreme Court hears appeal on state’s rule requiring lawsuits to get money back.”