Archive for January, 2018

As the Sergeant Said on Hill Street Blues: “Be Careful Out There”

posted by Judge_Burke @ 15:00 PM
January 30, 2018

Glen J. Dalakian II has posted Open the Jail Cell Doors, HAL: A Guarded Embrace of Pretrial Risk Assessment Instruments (87 Fordham L. Rev., Forthcoming) on SSRN.

Here is the abstract:

In recent years, criminal justice reformers have focused their attention on pretrial detention as a uniquely egregious and solvable contributor to modern mass incarceration. While bail reform can take many forms, one of the most pioneering and controversial techniques is the adoption of actuarial models to inform bail decisions. These models are designed to supplement or replace the unpredictable and discriminatory status quo of judicial discretion when setting bail. This Note argues that policymakers should experiment with risk assessment instruments as part of their bail reform efforts, but only if proper safeguards are in place. 

Concerns for protecting constitutional rights, mitigating racial disparities, and avoiding the drawbacks of machine learning are key challenges for reformers. Absent proper precautions, risk assessment instruments can reinforce modern disparities rather than alleviate them. Drawing from a case study of New Jersey’s recent bail reform program, this Note examines the efficacy, impact, and pitfalls of risk assessment instrument adoption. Finally, this Note offers a broad framework for policymakers seeking to thoughtfully experiment with risk assessment instruments in their own jurisdictions.


Reflecting Upon What You Want to Accomplish as a Judge

posted by Judge_Burke @ 15:00 PM
January 26, 2018

When your career is over and you look back on what is it that you would like to say about what you accomplished, one thing is, I was fair (check). Fairness means you gave voice to the people who appeared in your court. Those people left your court understanding what you decided and why you decided it. I communicated well in either what I said or what I wrote (check). I took the opportunity to use my position as a judge to leave the justice system a better place? There are judges who may not put a check here.

There is in interesting new article written by Jessica Roth (Yeshiva University – Benjamin N. Cardozo School of Law) that begins:

The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire. For too long, too many judges (including me) have been too quiet about an evil of which we are ourselves a part: the mass incarceration of people in the United States today.

You do not have to agree fully with Chief Justice Roberts’ insistence that Supreme Court Justices never do anything but call balls and strikes to believe that, most of the time, judges should try to act as umpires, not players. When the ground rules are relatively clear, the strike zone is well-defined, and the game is working well, an umpire/judge should seek to apply the rules fairly and blend into the background. What should happen, though, when an experienced umpire/judge believes that the rules are harming the game, threatening one or more of the players with serious injury? Notwithstanding Justice Roberts’s insistence that “nobody  ever went to a ballgame to see the umpire,” over the last decade, a cohort of well- respected and experienced federal trial judges have engaged in an unmistakably public campaign for criminal justice reform that causes them to look more like players than umpires.

So, you may be thinking, “I am not a federal judge (and am not likely to be one) nor I am a family court, limited jurisdiction, or civil trial court judge…so why read an article about the escapades of Federal District Court judges?” The answer is, because we become better judges by occasionally putting a question mark on things we have for too long taken as a given.

The article is: The ‘New’ District Court Activism in Criminal Justice Reform (NYU Annual Survey of American Law, Forthcoming) on SSRN. Here is the abstract:

Historically, the debate over the judicial role has centered on the constitutional and administrative law decisions of the United States Supreme Court, with an occasional glance at the Federal Courts of Appeals. It has, moreover, been concerned solely with the “in-court” behavior of Article III appellate judges as they carry out their power and duty “to say what the law is” in the context of resolving “cases and controversies.” This Article seeks to deepen the discussion of the appropriate role of Article III judges by broadening it to trial, as well as appellate, judges; and by distinguishing between an Article III judge’s “decisional” activities on the one hand, and the judge’s “hortatory” and other activities on the other. To that end, the Article focuses on a cohort of deeply respected federal district judges-many, although not all, experienced Clinton appointees in the Southern and Eastern Districts of New York–who, over the last decade, have challenged conventional norms of judicial behavior to urge reform of fundamental aspects of the federal criminal justice system. These “new” judicial activists have made their case for reform in the pages of their judicial opinions, often in dicta; in articles and speeches; and through advocacy within and beyond the judicial branch. This Article summarizes this activity, places it in historical context, and assesses its value as well as its risks.


Mental Health Courts and Sentencing Disparities

posted by Judge_Burke @ 15:00 PM
January 24, 2018

E. Lea Johnston and Conor Flynn (University of Florida – Levin College of Law and University of Florida – Levin College of Law) have posted Mental Health Courts and Sentencing Disparities (62 Vill. L. Rev. 685 (2017)) on SSRN.

Here is the abstract:

Despite the proliferation of mental health courts across the United States, virtually no attention has been paid to the criminal justice effects these courts carry for participants. This article provides the first empirical analysis of differential sentencing practices in mental health and traditional criminal courts. Using a case study approach, the article compares how Pennsylvania’s Erie County Mental Health Court and county criminal courts sentenced individuals who committed the same offenses and held the same average criminal history score. Information on the mental health court — including eligibility criteria, plea bargaining and sentencing procedure, sentencing policies, program length, graduation rates, likelihood of early discharge, and consequences of unsuccessful termination — derive from interviews with key mental health court professionals, five years of collected sentencing and dispositional data, and court materials. The Pennsylvania Commission on Sentencing provided the county-level data, which were disaggregated by offense and criminal history score. The article analyzes sentencing for twelve offenses spanning four offense grades. 

The findings are striking. First, analysis reveals that anticipated mental health court sentences typically exceed — by years — the supervisory periods that offenders would otherwise receive in a county criminal court. Second, mental health court participants with multiple convictions were significantly more likely to receive consecutive, as opposed to concurrent, sentences than those sentenced by traditional courts. Third, the analysis suggests the mental health court usually does not divert individuals from jail or prison sentences — a primary justification for these courts — but instead merely extends state control over individuals with serious mental illnesses. Fourth, key mental health court actors appear unaware of likely sentencing disparities or the high rate of participant failures. Thus, offenders choosing between mental health and traditional courts may go uninformed about these fundamental differences. The article concludes with suggestions for future research.


Should Judges Be More Cautious About Risk Assessment Instruments?

posted by Judge_Burke @ 20:49 PM
January 23, 2018

In the last decade there has been a proliferation of risk assessment tools, mostly driven by the attempt to achieve “evidence based sentencing” or more rational pretrial release decisions. More recently there have been notable skeptics like former Attorney General Holder. But, even if you don’t go quite that far, there are judges who employ the instruments with such rigidity that they become a substitute for judgment, not an aid for judgment.

As reported by Professor Doug Berman in his Sentencing Law & Policy blog, a new research article in the latest issue of Science Advances provides a notable new perspective on the debate over risk assessment instruments. The article is authored by computer scientists Julia Dressel and Hany Farid and is titled, “The accuracy, fairness, and limits of predicting recidivism.”

Here are parts of its introduction:

In the criminal justice system, predictive algorithms have been used to predict where crimes will most likely occur, who is most likely to commit a violent crime, who is likely to fail to appear at their court hearing, and who is likely to reoffend at some point in the future.

One widely used criminal risk assessment tool, Correctional Offender Management Profiling for Alternative Sanctions (COMPAS; Northpointe, which rebranded itself to “equivant” in January 2017), has been used to assess more than 1 million offenders since it was developed in 1998. The recidivism prediction component of COMPAS — the recidivism risk scale — has been in use since 2000.  This software predicts a defendant’s risk of committing a misdemeanor or felony within 2 years of assessment from 137 features about an individual and the individual’s past criminal record.

Although the data used by COMPAS do not include an individual’s race, other aspects of the data may be correlated to race that can lead to racial disparities in the predictions. In May 2016, writing for ProPublica, Angwin et al. analyzed the efficacy of COMPAS on more than 7000 individuals arrested in Broward County, Florida between 2013 and 2014.  This analysis indicated that the predictions were unreliable and racially biased.  COMPAS’s overall accuracy for white defendants is 67.0%, only slightly higher than its accuracy of 63.8% for black defendants.  The mistakes made by COMPAS, however, affected black and white defendants differently: Black defendants who did not recidivate were incorrectly predicted to reoffend at a rate of 44.9%, nearly twice as high as their white counterparts at 23.5%; and white defendants who did recidivate were incorrectly predicted to not reoffend at a rate of 47.7%, nearly twice as high as their black counterparts at 28.0%. In other words, COMPAS scores appeared to favor white defendants over black defendants by under predicting recidivism for white and over predicting recidivism for black defendants….

While the debate over algorithmic fairness continues, we consider the more fundamental question of whether these algorithms are any better than untrained humans at predicting recidivism in a fair and accurate way.  We describe the results of a study that shows that people from a popular online crowdsourcing marketplace — who, it can reasonably be assumed, have little to no expertise in criminal justice — are as accurate and fair as COMPAS at predicting recidivism. In addition, although Northpointe has not revealed the inner workings of their recidivism prediction algorithm, we show that the accuracy of COMPAS on one data set can be explained with a simple linear classifier.  We also show that although COMPAS uses 137 features to make a prediction, the same predictive accuracy can be achieved with only two features. We further show that more sophisticated classifiers do not improve prediction accuracy or fairness. Collectively, these results cast significant doubt on the entire effort of algorithmic recidivism prediction.


What is Appropriate Attire in a Courtroom?

posted by Judge_Burke @ 16:59 PM
January 19, 2018

No shoes, no shirt, no justice. By providing courthouse staff with broad discretion and few guidelines, courtroom dress codes can violate constitutional rights. One solution:  getting more judges involved in deciding what’s appropriate and what is not. Here is original TMP commentary from Jeff Campbell, a third-year Harvard law student:  The Marshall Project.

There is more case law about courtroom attire than you may think. For example, a priest serving as an attorney may be required to wear non-clerical garb, at least where the dictates of his or her religion will not be violated. In La Rocca v. Lane, 37 N.Y.2d 575 (N.Y. 1975), the trial court held that the attorney, who was also a priest, could not wear his clerical collar while he was representing his client during a criminal trial. On appeal, the Court of Appeals agreed and held that the court of necessity limited defense counsel’s right to free exercise of religion in that he was compelled to remove the symbol of his religious calling, a requirement of his calling which is not unconditional or beyond dispensation. The risk that a fair trial could not be had outweighed this incidental limitation.

Chief Justice Robert N. Wilentz once wrote a memorandum entitled, “Courtroom Decorum and Respect for Courtrooms.” The memo contained a directive to trial judges not to restrict litigants from dressing as they choose. The memo stated, in pertinent part:

I do not believe we should try to influence how litigants or witnesses dress, absent something that approaches the obscene. I believe the fact finder, be it the jury or the judge, should see the litigant or witness as that person wishes to appear and reach whatever conclusions flow from that ‘fact.’ If a worker believes that he or she should dress the way he or she always does, I would not stop that; nor would I try to prevent that worker from dressing in a way he or she never does. I realize though this may not be in accord with present practice and welcome your views on it.

So, what is your take on the issue?


Racial Profiling

posted by Judge_Burke @ 16:09 PM
January 17, 2018

If you are the victim of racial profiling, someone once said, you better hope you have a pound of marijuana in the trunk of your car–because of the marijuana, you will get a lawyer and a decent chance to be vindicated. 

But, what if you just get a ticket and no lawyer…what then? The fallout continues from Florida “walking while black” series. The Jacksonville state attorney last week issued a directive educating local police officials about the state’s pedestrian statutes, which have been enforced, a media investigation concluded, in a racially disparate fashion for years. Local officials immediately called for a suspension of the enforcement of those laws.

The article is here: ProPublica


Just How Creative Should You Be in Your Written Orders?

posted by Judge_Burke @ 18:30 PM
January 16, 2018

Every once in a while judges issue orders that are quite creative. Those orders are usually radically different. For many judges, they acknowledge or are even envious about the creativity of those orders, but their tone makes them uncomfortable. Snarky orders don’t engender trust even if they do get widely circulated. At the same time boring orders don’t get circulated and may not get read very carefully.

So with those thoughts, if you have not seen this order it clearly is in the creative category:  US v. Bishop






Racism in Jury Verdicts

posted by Judge_Burke @ 16:18 PM
January 10, 2018

Our nation has a history that betrays the values of equality. Racism has an ugly part in our history. And so the decision of the United States Supreme Court in a Georgia death penalty case is interesting.

The U.S. Supreme Court Monday granted relief to a condemned Georgia man whose capital case was marked by juror bias.

The juror in question reportedly told investigators after the trial that there were two kinds of black people in the world: “ni–ers and “regular black folks.” This, the justices concluded, raised questions about that juror’s service on the jury. The case now has been returned to the lower courts for review. Justice Thomas wrote a dissent on behalf of himself and two colleagues.

The New York Times has the story.


Applying the 4th Amendment in the Age of Technology

posted by Judge_Burke @ 15:30 PM
January 8, 2018

Shawn Marie Boyne (Indiana University Robert H. McKinney School of Law) has posted StingRay Technology, the Exclusionary Rule, and the Future of Privacy: A Cautionary Tale on SSRN.

Here is the abstract:

Sometime in 2017, smartphone ownership in the United States will exceed 222 million users which will be equivalent to a market penetration rate of over 85 percent. Although millions of individuals in the United States enjoy the convenience of using smartphones, it is likely that few of those citizens understand that government agencies have used those same phones to track the location of individuals in real time as well as to access the significant and previously private information stored on those devices without a warrant. The public’s general lack of awareness of the intrusiveness of current law enforcement surveillance is but one factor responsible for creating this knowledge gap. Another root of the gap however is that the judicial institutions that we entrust with protecting our rights cannot preemptively adjust constitutional doctrines to parallel technological change. Indeed, judicial institutions have typically adopted a cautious approach to adjusting constitutional doctrines to technological developments. For example, although Apple introduced the IPhone in January 2007, it took seven years for the Supreme Court to hold that government agents must obtain a warrant to search smartphones seized incident to arrest. This article argues that the widespread deployment of cell-site-simulator technology and its warrantless use by law enforcement agencies illustrates the weakness of our current structure of Fourth Amendment protections and that we cannot rely on the judicial branch to adequately protect individual privacy rights in an age of rapidly developing technology.

In Part I of this article, I highlight the evolution of the use of StingRay technology in criminal investigations in the United States and the efforts by privacy rights organizations to elevate the standard of judicial scrutiny of those devices. In Part II, I examine two ground-breaking 2016 court decisions in which courts for the first time suppressed evidence obtained through the use of cell-site simulator technology. While United States v. Lambis is the first instance where a federal court suppressed stingray-related evidence, the decision of the Maryland Court of Special Appeals in State of Maryland v. Andrews, is the first state appellate decision to uphold a trial court’s CSS-related suppression order. Finally in Part III, I argue that the history of the government’s use of CSS technology demonstrates that in a common law system restricted to litigating current cases and controversies, the judicial branch standing alone cannot adequately protect individual privacy rights.


The Second Amendment and Domestic Violence

posted by Judge_Burke @ 15:17 PM
January 5, 2018

There are terrorists in our country…but they are not shadowy figures from the Middle East. They are perpetrators of domestic violence. Each year more women and children die from domestic violence in numbers far greater then those who die from terrorists. And so there are bans on possession of guns by those who commit acts of domestic violence. But, do those bans violate the Second Amendment?

The Associated Press reports:

A divided federal appeals court panel on Thursday upheld the U.S. ban on guns for people convicted of misdemeanor domestic violence, even decades after the offense.

The 6th U.S. Circuit Court of Appeals judges voted 2-1 to affirm a lower court’s dismissal of the challenge to by an Ohio man who pleaded no contest in 1997 to a domestic violence charge for “knowingly causing or attempting to cause harm” to his then-wife.

The man, Terry Stimmel, was blocked in 2002 from buying a gun at a Walmart store after a background check showed his domestic violence record. He said he wanted the gun to “defend his home and family.”

Stimmel appealed unsuccessfully to the FBI and then filed a challenge to the U.S. statute on domestic violence and guns, saying it unconstitutionally undercuts his Second Amendment right to keep and bear arms and his right to equal protection under the law. He has had no other conviction but contends he has little chance of getting a pardon or otherwise having his misdemeanor conviction set aside.

However, Judge Richard Allen Griffin, joined by Judge Helene White, said federal courts have consistently upheld the gun ban for misdemeanor domestic violence convicts, who were included in a 1996 law intended to disarm domestic abusers who weren’t prosecuted for felonies but posed continued risks of violence to their families.

“The record contains sufficient evidence to reasonably conclude that disarming domestic violence (misdemeanor convicts) is substantially related to the government’s compelling interest of preventing gun violence, and particularly, domestic gun violence,” Griffin wrote.

Judge Danny Boggs dissented, saying the government offered, “at best, minimal evidence” that someone with no other domestic violence history presents a heightened risk decades later.” You can access the  ruling of the U.S. Court of Appeals for the Sixth Circuit at this link. Senior Circuit Judge Danny J. Boggs issued this dissenting opinion.