Archive for April, 2017

Since the decision in Padilla, there has been a lot more discussion about collateral consequences. Some cynics say there are nearly 40,000, so no one can adequately have knowledge of them all. But, in medicine, doctors face thousands of alternatives about why the human body gets sick and the reaction is not, “Darn, it is just too complicated!”

Gabriel “Jack” Chin (University of California, Davis – School of Law) has posted Collateral Consequences of Criminal Conviction (Academy for Justice, A Report on Scholarship and Criminal Justice Reform (Erik Luna ed., 2017, Forthcoming)) on SSRN.

Here is the abstract:

For many people convicted of crime, the greatest effect will not be imprisonment, but being marked as a criminal and subjected to collateral consequences. Consequences can include loss of civil rights, public benefits, and ineligibility for employment, licenses, and permits. Often applicable for life, the United States, the 50 states, and their agencies and subdivisions impose collateral consequences based on convictions from any jurisdiction. Collateral consequences are so numerous and scattered as to be virtually uncountable. In recent years, the American Law Institute, ABA, and Uniform Law Commission all have proposed reforms.

Collateral consequences should be: (1) collected so that defendants, lawyers, judges and policymakers can know what they are; (2) incorporated into counseling, plea bargaining, sentencing and other aspects of the criminal process; (3) subject to relief so that individuals can pursue law-abiding lives, and regain equal status; and (4) limited to those that evidence shows reasonably promote public safety.


If you look at those courts that are plagued with court delay, one of the principle factors is discovery disputes. If you look among those courts at those that have an incidence of wrongful convictions, wrongfully withheld discovery is a principal factor. Reform is necessary. 

Darryl K. Brown (University of Virginia School of Law) has posted Discovery Reform in State Criminal Justice (Forthcoming in Academy for Justice: A Report on Scholarship and Criminal Justice Reform (Erik Luna ed., 2017)) on SSRN.

Here is the abstract:

Rules of pretrial evidence disclosure vary widely in state criminal justice systems. In all states discovery is more restricted than it is in civil litigation. In a substantial minority of states, it remains dramatically restricted. That is in part a relic of the common law tradition when it was assumed most cases would be resolved by trial. But trials are now rare; nearly all convictions are the result of a plea bargain. The pretrial stage is the only place in which adversarial process operates and in which parties can evaluate evidence. Most states have adopted broader discovery rules in light of this reality, because disclosure failures have led to wrongful convictions, and because experience show that risks related to certain disclosures are easily managed. The primary agenda for discovery reform in state criminal justice is to convince those states that still adhere to outdated disclosure policies to join the majority of their peers and require more evidence to be exchanged between prosecutors and defense attorneys prior to plea bargaining.


Body Cameras

posted by Judge_Burke @ 15:00 PM
April 21, 2017

For many courts this is not an issue. Defendant’s counsel gets the body camera footage routinely. But if this is not the practice in your jurisdiction . V. Noah Gimbel has posted Body Cameras and Criminal Discovery (Georgetown Law Journal, Vol. 104, No. 6, 2016) on SSRN.

Here is the abstract:

As police departments nationwide operate under increasing public scrutiny following numerous high-profile instances of excessive and often lethal force against unarmed African-Americans and Latinos, calls for greater accountability have been nearly unanimous in supporting the use of Body-Worn Cameras (BWCs) by police officers. On September 21, 2015, the Department of Justice announced awards totaling over $23 million to local police departments for the purpose of implementing BWC programs. Announcing the project, Attorney General Loretta Lynch emphasized the hope that BWCs would “enhance transparency, accountability, and credibility” among beleaguered police departments nationwide. But, in addition to recording the activities of the police, BWCs also record the conduct and statements of criminal defendants, victims, and witnesses of crimes. BWC footage has been widely discussed for its potential to hold police accountable for their actions, but it has not yet been subject to scholarly examination for its potential use as evidence in criminal proceedings. This Note fills that gap, focusing on the conflict between the government’s interest in maintaining exclusive control over BWC footage and the defendant’s entitlement to pretrial discovery under Rule 16 of the Federal Rules of Criminal Procedure and the Due Process Clause of the Fifth and Fourteenth Amendments. Although witness safety concerns may justify some limitations on defendants’ access to body-cam footage in exceptional cases, this Note argues that the discovery rules governing analogous pre-existing technologies militate in favor of broad pretrial disclosure of BWC footage.


Procedural Fairness for Courts & Judges

posted by Judge_Burke @ 19:07 PM
April 20, 2017

Judge Steve Leben sits on the Kansas Court of Appeals. He and I have co-authored a number of articles on procedural fairness and founded the Procedural Fairness web site. Steve posted this on the web site today and I thought I would pass it on:

New Book from CCI: To Be Fair

by Steve Leben

The Center for Court Innovation has published a new book with 27 interviews with leaders around the country in procedural justice. The book is called To Be Fair: Voices About Procedural Justice, hot off the presses and also posted on the web. The book has a foreword from Prof. Tom Tyler and CCI deputy director Emily LaGratta.

As part of the book’s launch, CCI is hosting a live-streamed panel discussion on Friday, April 21, 2017 (9:30-10:30 a.m. EDT). I’m pleased to be part of that discussion, which will also include:

- Barbara Marcille, Multnomah County (OR) Circuit Court

- Melba Pearson, American Civil Liberties Union of Florida

If you’d like to join us this Friday morning (9:30-10:30 a.m. EDT) for the procedural-justice panel discussion, Here’s the direct link. Emily LaGratta will be moderating.

Whether you join us or not, the book may be of interest. Those interviewed include judges, court administrators, prosecutors, defense attorneys, and judicial-performance evaluators.


Are Day Fines a Solution?

posted by Judge_Burke @ 14:45 PM
April 19, 2017

After Ferguson, there has been renewed interest in how courts approach fines. Ferguson is regrettably a short term moniker for courts that are oblivious to the harsh reality of fining poor people. Many judges are rethinking what is the right thing to do. Elena Kantorowicz-Reznichenko (Erasmus University Rotterdam) has posted Day Fines: Reviving the Idea and Reversing the (Costly) Punitive Trend (American Criminal Law Review, Forthcoming) on SSRN.

Here is the abstract:

Fines have numerous advantages as a criminal sanction. They impose minor costs on the society and compliance leads to an increase of the state revenue. Furthermore, fines have no criminogenic effect as prisons do. However, the potential of this sanction is not fully exploited due to income variation among offenders. Sanctions must impose an equal burden on offenders who commit similar crimes. Yet in practice, low fines are insufficiently punitive to deter and punish wealthy offenders. And high fines are unaffordable for low-income offenders. As a result, fines are imposed only for minor offenses. On the contrary, day-fines allow imposing an equal relative burden of punishment, while assuring the offender is capable of complying with the pecuniary sanction. This is possible due to the special structure of day-fines, which separates the decision on the severity of the crime and the financial state of the offender. Such structure enables expanding the categories of offenses that can be dealt with pecuniary sanctions. Day-fines can offer a partial solution for the American prison-overcrowding problem. Therefore, the aim of this article is twofold. First, to provide a comparative analysis of day-fines in Europe. This analysis includes an exhaustive depiction of all the day-fine models that are currently implemented in Europe. Second, this article examines for the first time some of the challenges in transplanting day-fines into the U.S. criminal justice system, i.e. the constitutional restriction on Excessive Fines and the suitability of this model of fines to the American ‘uniformity revolution in sentencing’.


The Mental Health of Judges

posted by Judge_Burke @ 15:35 PM
April 18, 2017

Years ago I had a conversation with a judicial colleague that went along these lines, “Jim you are either the best judge or the worst on our bench.” The conversation essentially went nowhere…and then a few weeks later Jim (not his real name) told me that he had sought professional help. The prescribed medication helped and there the story should have ended. But Jim felt an obligation to tell others about his medical condition, and regrettably the rumors or innuendo about “Crazy Jim” began.

Every judge has less than stellar days, but few get the “is he off his meds today?” treatment. And the story had a sad ending. Judges are people who are just as likely to suffer medical conditions as anyone else, but we live in an era where too often mental health is not viewed in the same way as a gall bladder attack or diabetes.

Recently, the New York Law Journal had an article on mental illness of judges and the challenges for those afflicted:

Eileen Travis, director of the New York City Bar Association’s Lawyer Assistance Program, said judges are wary of reporting that they are having mental health problems. “They’re afraid that if word gets out, that’s just going to be it. That’s going to be the end of their career,” she said.

All states have laws protecting the confidentiality of lawyers and judges who seek assistance, Travis said. New York’s law, Judiciary Law §499, also grants immunity from civil liability to those who work for lawyer assistance programs.

For judges—who make up a small percentage of those who seek help from her office—there may be pressure to keep “cool, calm and collected,” Travis said, and a view that, as the ultimate problem-solvers in many cases, they need to maintain a veneer of being problem-free themselves.

“Even though, behind the scenes, they may be struggling with things that we all struggle with,” she said.

Austin attorney Seana Willing, the former head of the Texas State Commission on Judicial Conduct who often met with judges who wanted to discuss ethical dilemmas, said jurists are extremely reluctant to discuss mental health problems.

“That judge may have to stand for re-election,” she said. “Some may have health insurance to cover it, and some may not. And a lot of family members circle the wagons in a way that might make it harder for the person to get help.”

In 2005, Willing had planned to sit down with Mack Kidd, a well-regarded Texas appellate court judge who had arranged the meeting on a Monday morning. She would never find out why Kidd wanted to meet. He took his own life the previous day.

“The odd thing was … I didn’t know how he died until his ceremony,” said Willing, who considered Kidd, a justice on Austin’s Third Court of Appeals, a friend. “Then I saw all of these people speak about him and it became apparent that he had taken his own life. That shocked me to the core.”

The American Bar Association has a national hotline for judges who are having mental health and addiction problems that is operated by the Texas Lawyers’ Assistance Program (TLAP)—a State Bar of Texas program that offers confidential help with lawyers, law students and judges.

But Bree Buchanan, director of TLAP, said judges rarely call.

“They are invited to make a confidential phone call and we’ll help to find them resources and another peer support judge in the community that has faced something similar,” Buchanan said. “And we get about five or six calls a year.”

Judges often feel alone in their jobs because they have to separate themselves from the legal community for ethical reasons when they take the bench, she said.

“The problems that judges face are similar to stressors that lawyers face but I think they are more acute. Their degree of isolation is greatly increased,” Buchanan said. “And they can’t show any weakness or vulnerability even more than a lawyer because they are charged with making life-or-death decisions in their community. These factors in particular, combined, make it almost impossible for judges to reach out for help.”

Buchanan noted that it is often hard for members of the public to pick up on warning signs when a judge suffers from severe depression. For example, an impaired judge’s work product often does not suffer until their mental illness begins to spiral out of control. Some judges may give away their mental health issues if they display a disheveled appearance in court or are often late or missing from their jobs, she said.

“And then the difficulty becomes, what can be done about it?” Buchanan said. “And who in the county is going to approach the judge? It becomes very difficult.”

Buchanan said she encourages any judge who may be suffering from depression, mental health issues or addiction problems to call the ABA hotline for help at 1-800-219-6474.



From the Federal Criminal Appeals blog:

United States v. Perkins, — F.3d —, 2017 WL 957205 (9th Cir. Mar. 13, 2017): Agent’s omission of relevant information from warrant invalidated computer search

There’s an old story about a two-car race, orchestrated during the height of the Cold War, between a driver from the United States and a driver from the Soviet Union. The race is close, but the American driver narrowly wins. The next day’s headline in the state-run Soviet newspaper reads: “In historic race, Soviet driver finishes second, while American driver barely manages to finish second to last.” It’s all true, of course, but the omission of material information renders it rather misleading. Amusing enough, as a parable of state propaganda; less so as a template for drafting a search warrant affidavit.

Which brings us to Mr. Charles Perkins. Mr. Perkins was en route to the United States through a Canadian airport when Canadian law enforcement agents learned that he was a registered sex offender and decided to have a look at his laptop. They found two questionable images, and called in an officer with expertise in child exploitation crimes. The expert examined the images and wrote up a report explaining his conclusion that they did not meet the Canadian definition of child pornography. Mr. Perkins went on to the United States, while the Canadian expert’s report went to the U.S. Department of Homeland Security. An American DHS agent drafted an affidavit, based on the Canadian expert’s report, in support of an application for a warrant to search Mr. Perkins’ home computers. The agent relayed the basic facts from the Canadian expert’s report, but omitted mitigating portions of the Canadian officer’s descriptions of the images, failed to include the actual images, and failed to mention that the Canadian expert had determined that the images were not pornographic. Finding that these omissions were knowing and misleading, and that a properly-drafted affidavit would not support probable cause, the Ninth Circuit held that the evidence derived from the search warrant should have been suppressed, and vacated Mr. Perkins’ conviction. Judge Murguia dissented, arguing that the majority should have exhibited greater deference to the district court’s assessment of the agent’s omissions.


Bail Reform

posted by Judge_Burke @ 14:30 PM
April 6, 2017

In many parts of the United States, there are attempts to reform the bail system. Recently, New Jersey amended the state constitution as part of a bail reform project. Similarly, Maryland made major changes.

Megan Stevenson and Sandra G. Mayson (University of Pennsylvania Law School and University of Pennsylvania Law School) have posted Bail Reform: New Directions for Pretrial Detention and Release (In Academy for Justice, A Report on Scholarship and Criminal Justice Reform (Erik Luna ed., 2017, Forthcoming)) on SSRN.

Here is the abstract: 

Our current pretrial system imposes high costs on both the people who are detained pretrial and the taxpayers who foot the bill. These costs have prompted a surge of bail reform around the country. Reformers seek to reduce pretrial detention rates, as well as racial and socioeconomic disparities in the pretrial system, while simultaneously improving appearance rates and reducing pretrial crime. The current state of pretrial practice suggests that there is ample room for improvement. Bail hearings are often cursory, with no defense counsel present. Money-bail practices lead to high rates of detention even among misdemeanor defendants and those who pose no serious risk of crime or flight. Infrequent evaluation means that the judges and magistrates who set bail have little information about how their bail-setting practices affect detention, appearance and crime rates. Practical and low-cost interventions, such as court reminder systems, are underutilized. To promote lasting reform, this chapter identifies pretrial strategies that are both within the state’s authority and supported by empirical research. These interventions should be designed with input from stakeholders, and carefully evaluated to ensure that the desired improvements are achieved.


This is the Face of Domestic Abuse

posted by Judge_Burke @ 22:25 PM
April 5, 2017

In front of a Guilford County courthouse in North Carolina recently stood a man holding a poster with a hand-written message: “This is the face of domestic abuse.” It wasn’t a bizarre publicity stunt but a court-imposed public shaming. In another case, a ferry operator in Massachusetts was found guilty of polluting. On top of a stiff fine, the judge ordered the company to publish an advertisement in the Boston Herald reading:  ”Our company has discharged human waste directly into coastal Massachusetts waters.”

The 8th Amendment bans cruel and unusual punishment. Are these either one? Or can justice be fairly meted out in something other than years and months behind bars? In 2012, a Ohio judge gave a woman a choice of going to jail or spending two days standing on a street corner with a sign reading:  ”Only an idiot would drive on the sidewalk to avoid a school bus.” The woman chose to hold the sign.

Jessica Eaglin, of the Brennan Center for Justice, says that some judges may view public shaming as more forward-looking than retributive punishments. Forward-looking public shaming is more deterrence-based, says Eaglin, and can have an impact on an entire community instead of just one person. For low-level crimes in small towns, “that’s where the public shaming comes in,” Eaglin says. “It’s reflecting on your life, people are watching you, and that’s going to affect your behavior more than just paying a fine.

Not unexpectedly, not everyone agrees. “This kind of public shaming has no record of efficacy in turning someone away from crime,” Peggy McGarry, director of the Center on Sentencing and Corrections at the Vera Institute of Justice.

There are times when it is a fine line between being a creative judge and simply being a crazy judge. So…what do you think about shaming as a form of punishment?



More on Plea Bargaining

posted by Judge_Burke @ 14:30 PM
April 4, 2017

Lisa Kern Griffin (Duke University School of Law) has posted State Incentives, Plea Bargaining Regulation, and the Failed Market for Indigent Defense (Law and Contemporary Problems, Vol. 80, 2017) on SSRN.

Here is the abstract:

This essay considers the intersection of two “markets” in the criminal justice system: plea bargaining and the provision of indigent defense. Plea bargaining has long been justified by free-market conceptions of private ordering and is subject to limited judicial oversight and regulation. The vast majority of defendants engaged in plea bargaining—several million each year—also rely on a publicly funded system for the provision of counsel. Staggering caseloads and minimal standards have produced an acute crisis in that system. Yet in three recent decisions, the Supreme Court has incrementally expanded the requirement of adequate assistance of counsel for defendants engaged in plea bargaining. The failure to advise a defendant entering a guilty plea of the collateral immigration consequences of conviction, exceedingly poor advice about rejecting a plea offer, and counsel’s failure to even convey the terms of a plea agreement all constitute breaches of a defendant’s Sixth Amendment right to representation. Although these decisions do not portend significant constitutional regulation of prosecutorial tactics or changes to the terms of plea agreements themselves, they have unexplored potential to affect the system of public defense.

By imposing even modest new requirements, the Court may have created a conflict between the efficiency of the plea bargaining market and the failing market for the representation of indigent defendants in the states. If certain information must be provided to clients in order for plea agreements to stand, then defense lawyers need enough resources to spend a few minutes more with those clients. Moving that lever—with the external force of court-imposed baselines for plea advice—could alter the state’s incentives. If the Court’s recent decisions even slightly expand the amount of time counsel must devote to defendants to ensure that pleas will be upheld, then the resources allocated to indigent defense might increase as well.