Archive for April, 2018

Stop & Frisk

posted by Judge_Burke @ 17:14 PM
April 16, 2018

If you were fortunate enough to attend the American Judges Association Annual Conference in Cleveland last fall you got the chance to see the courthouse where Terry v. Ohio began. The case, as you know, eventually ended up in the United States Supreme Court. Aside from the legal issue, an historical aside was the case was the first time the lawyers for both sides were black. But, now for today.

Evaluating the validity of stop and frisk is what many judges do and it is not always easy. David Rudovsky and David A. Harris (University of Pennsylvania Law School and University of Pittsburgh – School of Law) have posted Terry Stops-and-Frisks: The Troubling Use of Common Sense in a World of Empirical Data (Ohio State Law Journal, Forthcoming) on SSRN.

Here is the abstract:

The investigative detention doctrine first announced in Terry v. Ohio and amplified over the past fifty years has been much analyzed, praised, and criticized from a number of perspectives. Significantly, however, over this time period commentators have only occasionally questioned the Supreme Court’s “common sense” judgments regarding the factors sufficient to establish reasonable suspicion for stops and frisks. For years, the Court has provided no empirical basis for its judgments, due in large part to the lack of reliable data. Now, with the emergence of comprehensive data on these police practices, much can be learned about the predictive power of suspect conduct and other predicates for law enforcement interventions. And what has been learned calls into question a number of factors that have been credited over many years.

No observer of the legal system can fail to notice the growing role of data and empirical analysis in the courts. A disparate set of cases have turned in large part on rigorously analyzed data. Yet this trend has not taken root in an important set of cases involving the widely used practice of stop-and-frisk. When stop-and-frisk practices become the subject of litigation, courts generally either have no data to review or have failed to engage in empirical analysis of the data that are available and which could be used to test the claims of reasonable suspicion. Rather, the courts invoke the conventional wisdom that as a matter of common sense certain conduct, for example, furtive movement, flight, bulges in clothing, and suspect location, indicates criminal conduct.

We have no argument with common sense propositions; we have no aversion to clear, straightforward thinking. But what this phrase often reflects is a set of unexamined (even if widely held) assumptions. The proliferation of data on these basic questions provides the means for empirical analysis, and it is our argument that courts should do so in assessing reasonable suspicion factors in the same manner that they have engaged in empirical judgments, using both big and targeted data, in other areas.

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From the Legally Weird Blog

posted by Judge_Burke @ 14:30 PM
April 12, 2018

200 Roosters Held in Arkansas Jail Evidence in Cockfighting Case

By Molly Zilli, Esq.

What do you do when you have to keep hundreds of roosters as evidence of a crime? Put ‘em in jail. That’s what one Arkansas sheriff decided to do after arresting over a hundred people suspected of participating in cockfighting. Now a court will have to decide what to do with the jailbirds while neighbors put up with the noise.

Continue reading 200 Roosters Held in Arkansas Jail Evidence in Cockfighting Case .

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Thinking About Juries

posted by Judge_Burke @ 15:00 PM
April 11, 2018

Richard Jolly (New York University (NYU), School of Law – Civil Jury Project) has posted The New Impartial Jury Mandate (117 Michigan Law Review _ (2019 Forthcoming)) on SSRN.

Here is the abstract:

Impartiality is the cornerstone of the Constitution’s jury trial protections. Courts have historically treated impartiality as procedural in nature, meaning that the Constitution requires certain prophylactic procedures which secure a jury that is more likely to reach verdicts impartially. But in Peña-Rodriguez v. Colorado, 137 S.Ct. 855 (2017), the Supreme Court recognized for the first time an enforceable, substantive component to the mandate. There, the Court held that criminal litigants have a Sixth Amendment right to jury decisions made without reliance on extreme bias, specifically on the basis of race or national origin. The Court did not provide a standard for determining when evidence of partiality is sufficient to set aside a verdict, but made clear that an otherwise procedurally adequate decision may fall to substantive deficiencies.

This Article advances a structural theory of the Constitution’s Impartial Jury Mandate, focusing on the interplay between its ex-ante procedural and ex-post substantive components.

The Article argues that the mandate has traditionally taken shape as a collection of procedural guarantees because of a common law prohibition on reviewing the substance of jury deliberations. Pena-Rodriguez tosses this constraint, allowing judges for the first time to review the rationales upon which jurors base their verdicts. The Article then offers a novel approach for applying substantive impartiality more broadly by looking to the Equal Protection Clause’s tiers of scrutiny. It concludes that ex-ante procedural rules and ex-post substantive review can operate in conjunction to tease out undesirable, impermissible forms of jury bias, while still allowing for desirable, permissible forms of jury bias.

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Excessive Fines

posted by Judge_Burke @ 16:06 PM
April 10, 2018

Anatole France once said, “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” Now, Beth A. Colgan (University of California, Los Angeles (UCLA) – School of Law) has posted The Excessive Fines Clause: Challenging the Modern Debtors’ Prison (UCLA Law Review, Vol. 65, No. 2, 2018) on SSRN.

Here is the abstract:

In recent years, the use of economic sanctions-statutory fines, surcharges, administrative fees, and restitution-has exploded in courts across the country. Economic sanctions are imposed for violations as minor as jaywalking and as serious as homicide, and can range from a few dollars to millions. When a person is unable to immediately pay off economic sanctions, “poverty penalties” are often imposed, including interest and collections fees and probation. Failure to pay economic sanctions can result in serious consequences, including prohibitions on obtaining or suspensions of driver’s and occupational licenses, restrictions on public benefits, and even incarceration. Even when poverty penalties are not employed, an inability to pay off criminal debt means that the punishment imposed, even for very minor offenses, can effectively be perpetual. Desperate to avoid these repercussions, people go to extremes to pay. In an alarming number of cases people report having to forego basic necessities like food, housing, hygiene, or medicine, in order to pay what little they can, even if just a few dollars at a time. These and countless other stories of people trapped in persistent debt are becoming ubiquitous, and have raised the specter that current practices amount to modern day debtors’ prisons.

Constitutional challenges to such practices have primarily focused on the narrow window of the post-sentencing collections context, relying on a series of Fourteenth Amendment cases prohibiting the automatic conversion of economic sanctions to incarceration where a debtor has no meaningful ability to pay. While these challenges can provide an important post hoc protection against the use of incarceration as a penalty for the failure to pay, they do not address the financial instability exacerbated by and ongoing threat of incarceration raised by debt from unmanageable economic sanctions.

A separate, albeit underdeveloped, constitutional provision that may be better suited to addressing the debtors’ prison crisis lies in the Eighth Amendment’s Excessive Fines Clause, which provides protection at sentencing. To date, the United States Supreme Court has only determined that criminal and civil forfeitures constitute fines. This Article examines the key concerns underlying those determinations, explicating the Court’s interest in treating economic sanctions as fines where they are used by the government to punish-evidenced by a link to prohibited conduct or treatment of economic sanctions like other recognized forms of punishment-as well as the Court’s desire that the Clause serve as a bulwark against the risk that the prosecutorial power will be abused due to the revenue generating capacity of economic sanctions. Applying these core concerns supports the conclusion that common forms of economic sanction (including statutory fines, surcharges, administrative fees, and restitution) constitute fines for purposes of the Clause.

In addition, this Article examines the meaning of excessiveness, arguing that one’s ability to pay is relevant to the question of whether a fine is constitutional. The Court has adopted the Cruel and Unusual Punishments Clause’s gross disproportionality test for measuring excessiveness. Attending to financial circumstances in the excessiveness inquiry is in harmony with key principles animating the proportionality doctrine: equality in sentencing, comparative proportionality between offenses of different seriousness, the expressive value of punishment, concern for the criminogenic effect of and other social harms caused by punishment, and the prohibition on punishments that unreasonably infringe on human dignity.

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Misdemeanor Sentencing

posted by Judge_Burke @ 15:51 PM
April 3, 2018

Jenny Roberts (American University – Washington College of Law) has posted Informed Misdemeanor Sentencing (Hofstra Law Review, Vol. 46, No. 171, 2017) on SSRN.

Here is the abstract:

There is no such thing as a low-stakes misdemeanor. The misdemeanor sentence itself, which can range from time served to up to twelve years in some jurisdictions, is often significant. But the collateral consequences of such a conviction can be far worse, affecting a person’s work and home lives for decades, and sometimes for the rest of their lives. As a result of misdemeanor convictions, defendants can be fired from their jobs, barred from future employment in many fields, deported, evicted from public housing together with their entire family, and refused housing by private landlords. 

Under most theories of punishment, a judge at sentencing does not simply look back to the crime and its circumstances but also looks forward at the defendant’s future. Judges imposing sentences in misdemeanor cases should focus forward much more heavily than back, and should consider the collateral effects of a misdemeanor conviction on the defendant’s future. Viewed through that more expansive lens, and given the broad discretion of judges in misdemeanor sentencing and lack of existing guidance for that discretion, the sentencing function of judges in misdemeanor cases is in serious need of study and reform. 

This Article’s goal is two-fold. First, it contextualizes judicial responsibility for misdemeanor sentencing in the realities of the lower criminal courts, where a number of structural and systemic barriers — including violations of the right to counsel and pressures on judges to move cases along rapidly — affect but do not excuse the way judges go about sentencing. Second, the Article calls for judges to undertake “informed misdemeanor sentencing,” which draws on principles of proportionality and parsimony in determining the just sentence in a misdemeanor case. Accordingly, judges should explicitly acknowledge the many serious collateral consequences an individual suffers after any penal sanction, and incorporate those into the sentencing process to ensure that punishment is proportionate. In addition, judges should bring parsimony into the sentencing process by making more use of deferred adjudication as well as expungement and related mechanisms for mitigating the unintended effects of a misdemeanor conviction.​

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