Archive for December, 2017

The Amazing Chief Justice Beverley McLachlin

posted by Judge_Burke @ 16:58 PM
December 13, 2017

Canada is about to lose one of the finest jurists in North America:  Chief Justice Beverley McLachlin is retiring. She made a difference in her country, but for those who have had the privilege to meet her, her influence transcended.

I first met her when invited to speak in Canada about the relationship between courts and the media. Canadian judges are traditionally quite reserved about talking to the media. There are of course good reasons to limit what a judge is willing to comment to the media about, but appropriate comment to the media promotes public understanding of our branch of government. Chief Justice McLachlin understands that.

Great court leaders have to have the courage to occasionally take on the rest of government when the independence of the judiciary is under attack. There are court leaders who are far too hesitant to speak up. Chief Justice MaLachlin with dignity had the courage to speak up when a champion for the judiciary was needed:

Supreme Court of Canada Chief Justice Beverley McLachlin fought back tears Thursday as she said goodbye after serving nearly three decades on the country’s highest court.

“Whatever lies ahead, I know that my time here will always be the centrepiece of my life,” she said.

​McLachlin, 73, announced her retirement in June, but Thursday’s hearing about the cross-border beer case of a New Brunswick man was her final day on the bench.

She received a standing ovation.

“It’s been intellectually stimulating, it’s been hugely challenging, and there’s not been a day when I haven’t thought, ‘I am the luckiest of people,’” she said.

“It has been, as they say vernacularly, a terrific ride.

McLachlin was sworn in as a justice of the Supreme Court of Canada in 1989 and became the first woman to hold the top post when she was appointed in 2000.

She said she was grateful for her “good fortune” of serving during a period when Canadian law has “grown so greatly.”

“Don’t get your hopes up respondents, that’s a general statement,” she quipped to Gerard Comeau’s lawyers, prompting laughter in the packed Ottawa courtroom.

Comeau’s lawyers are urging the court to strike down interprovincial trade barriers that led to his being nabbed by police for bringing 14 cases of cheap beer and other alcohol home from Quebec, which could have far-reaching implications.

The court has reserved decision to an undetermined date. McLachlin officially retires on Dec. 15, but will continue to weigh in on cases she has heard until next summer. A successor has not yet been named.

 

For the full story, go here.

 

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Fairness in Fines and Fees

posted by Judge_Burke @ 18:38 PM
December 12, 2017

A long time ago there were discussions about “day fines.” The idea never really caught on in the United States, but the idea is pretty simple. Fines and fees ought to be scaled to take into account the ability to pay. Surely Bill Gates can afford a fine greater than someone on welfare.

There are judges who agree, but there are others who say either it is too difficult to ascertain the ability to pay on crowded calendars, or who just think it is fair to say “if you did the crime” the penalty is the same.

Professor Beth Colgan has authored this new and timely article on the issue, available via SSRN.

Here is the abstract:

There is growing recognition that economic sanctions — fines, surcharges, fees, and restitution — are routinely imposed at rates many people have no meaningful ability to pay, which can exacerbate financial instability and lead to the perception that economic sanctions are unfairly punitive to people of limited means.  Concerns triggered primarily by highly punitive tactics, including incarceration and long-term probation of low-income debtors for the failure to pay, have led to increasing calls for reform.  While much attention is now being paid to the back-end of the system, and particularly limitations on punitive responses for the failure to pay due to poverty, this Article considers the problem from the front-end.  In particular, this Article focuses on a potential reform with increasing bipartisan support: the graduation of economic sanctions according to a person’s financial circumstances.

To that end, this Article explores several key considerations essential to designing a system of graduation, relying heavily on a largely-forgotten experiment in seven geographically, demographically, and politically diverse jurisdictions in the United States with the “day-fine.”  A day-fine is calculated using a penalty unit assigned based on the seriousness of the offense of conviction.  The penalty unit is then multiplied by the defendant’s adjusted daily income to determine the day-fine amount.  The result is an economic sanction adjusted to offense seriousness and simultaneously graduated to the defendant’s financial condition.  This Article mines the historical record of the American day-fines experiments — complemented by recent interviews with people involved in the design and implementation of the projects and experiences with means-adjustment in the consumer bankruptcy, tax, and public benefits contexts — for lessons on the design of graduating economic sanctions.  What emerges from this review is promising evidence that a properly designed and implemented system for graduation is consistent with efficient court administration, revenue generation, and equality in sentencing. 

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New York Courts Think Outside The Box

posted by Judge_Burke @ 14:30 PM
December 7, 2017

How to deal with low level offenders is perplexing. Jailing them is expensive and likely has minimal long term effectiveness. Fines and fees have gotten out of hand. Governing Magazine has an interesting story about thinking outside of the box in the New York courts:

Like many other cities, New York wants to reduce its jail population and repeated lock-ups of low-level offenders. The city’s latest attempt to address that goal centers around a bold idea that could be modeled nationwide: Do away with all jail sentences of less than a month.

That’s the idea behind newSTART, a jail diversion program launched in New York last month. It keeps defendants who have committed low-level misdemeanors — things like petty larceny or possession of small amounts of illegal drugs — from entering jail. It would also apply to people convicted of thefts of service, such as jumping a subway turnstile or exiting a taxi without paying.

Instead, in exchange for a guilty plea, misdemeanor defendants can opt for one or more social service programs, including drug treatment, job training and mental health counseling.

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“We are hopeful that the program will stop the return to jail and [create] a virtuous circle,” says Elizabeth Glazer, director of the Mayor’s Office of Criminal Justice.

Right now, the program is limited to defendants who have been sentenced to up to 10 days in jail. If it’s successful, it will be expanded to those convicted of crimes carrying sentences up to 30 days.

But not all defendants who fit that time frame will be eligible.

The program specifically targets defendants in need of social services and those who have been repeatedly arrested for similar crimes. Almost three-quarters of those facing short-term sentences are unemployed, and more than 40 percent are homeless, according to the Mayor’s Office of Criminal Justice.

NewSTART is seen as an improvement from previous jail diversion programs. In the past, defendants who opted for jail diversion ran the risk of serving more time than their initial sentence if they failed to complete the diversion program. For example, a person could escape a five-day jail sentence by opting for a diversion program — but then end up sentenced to 30 days in jail if they failed to complete that diversion program.

That undermined the point of the diversion program, says Jennifer Scaife, executive director of Prevention, Diversion, & Reintegration for the Mayor’s Office of Criminal Justice. “People were opting for jail instead of services, which didn’t stop the cycle of going to jail repeatedly.”

Under the new plan, the city will recommend that those who fail to complete the program be sentenced to no longer than 15 days in jail. Final discretion for sentencing, however, remains with judges.

Proponents of sentencing reform have pointed to the economic and social disruptions that even a short stay in jail can impose on poor and at-risk populations.

“Since the individuals who qualify for this programming are not major threats to public safety, it is far more productive to engage them in constructive programming than to impose punishment,” says Marc Mauer, executive director of The Sentencing Project, a group that advocates for corrections reform. “Certainly, not everyone who goes through the program will succeed. But even a modest success rate will often be more beneficial than warehousing [inmates] in jail for a week.”

At its core, the program is designed to rely on the expertise of job counselors, drug treatment specialists and mental health providers to break the cycle of incarceration, says Glazer from the city’s criminal justice office.

“All these providers know how to change the behavior of the people they serve so they don’t go back to jail. They use strategies that teach people to make better decisions,” she says. “It’s not the same old, same old.”

Executing the plan has also required buy-in from both prosecutors and judges — complicated somewhat by the fact that New York actually has five separate borough court systems, each with its own judges and district attorneys. So far, the effort is in place in Manhattan, Brooklyn and the Bronx.

“NewSTART is a promising way to hold offenders accountable in a constructive and humane fashion which may also help decrease recidivism,” says acting Brooklyn District Attorney Eric Gonzalez.

The plan is part of the city’s broader effort to reduce its jail population, which has already been cut in half over the last 20 years when you include people awaiting court dates, according to the mayor’s office.

In 2016, Mayor Bill de Blasio committed $17.8 million to roll out a citywide bail alternative program. Building on pilot programs started in Queens and Manhattan during former Mayor Michael Bloomberg’s administration, the program allows low-level offenders to remain at home under court supervision while they await trial.  De Blasio also committed $89 million to address what had been a rise in the number of mentally ill inmates in city jails. The city is also on pace to close its notorious Rikers Island facility in the next 10 years. That jail has been plagued by gang violence, inmate abuse by guards and a 2015 incident in which inmates fell ill after consuming meatloaf containing rat poison.

Thanks to New York’s sheer size and prominence, other cities will undoubtedly be watching as it tests this new approach.

“There are efforts around the country to reduce jail time,” says Adam Mansky, director of operations at the Center for Court Innovation, which has partnered with New York to connect defendants with social workers. “New York has shown leadership in this area with supporting expanded use of alternatives to jail.”

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How Good are Judges at Assessing Remorse?

posted by Judge_Burke @ 18:22 PM
December 6, 2017

Determining credibility is among the most difficult tasks a trial judge has. Judges make factual findings. But, judges are not necessarily better than others at figuring out who is telling the truth. For example, in a controlled study of 110 judges with an average of 11.5 years on the bench, judges did not do better than chance in telling who was being truthful and who wasn’t. See Paul Ekman & Maureen O’Sullivan, Who Can Catch a Liar?, 46 Am. Psychologist 913 (1991); Richard Schauffler & Kevin S. Burke, Who Are You Going to Believe?, 49 Court Rev. 124 (2013). 

Judge Learned Hand once said, “The spirit of liberty is the spirit which is not too sure that it is right.” So if determining who is telling the truth is problematic, what about determining the sincerity of remorse? 

There is a new paper, written by Professor Eve Hanan, that addresses this issue and is now available via SSRN. 

Here is the abstract:

Whether a defendant expresses remorse at criminal sentencing often has a direct bearing on the severity of the sentence.  But how good are judges at accurately assessing genuine, meaningful remorse?  Research demonstrates that judges hold contradictory and unfounded views about how sincere remorse should be expressed and, as a result, are likely to misjudge remorse.  Legal and social science scholars have grappled with the challenge of accurately assessing remorse, but no one has analyzed whether implicit racial bias skews remorse assessments at criminal sentencing in predictable and systematically discriminatory ways.

In an effort to unmask this mode of discrimination, this Article synthesizes two areas of scholarship not previously compared — (1) scholarship on the role of remorse in criminal sentencing and (2) social science research on implicit racial bias — to argue that unconscious cognitive assumptions about race and criminality causes judges to discredit African American displays of remorse and, as a consequence, sentence them to harsher punishments.  At a time when racial disparity and implicit bias dominates national discussions of criminal sentencing reform, improving our understanding of where our criminal justice system is particularly susceptible to racial bias can help reformers mend these weaknesses in our system to ensure it works equally for everyone.

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