Archive for September, 2018

Whom Should We Punish, and How? Rational Incentives and Criminal Justice Reform

posted by Judge_Burke @ 18:15 PM
September 28, 2018

The title of this post is the title of this paper authored by Keith Hylton posted to SSRN. Here is its abstract:

This essay sets out a comprehensive account of rational punishment theory and examines its implications for criminal law reform.  Specifically, what offenses should be subjected to criminal punishment, and how should we punish?  Should we use prison sentences or fines, and where should we use them?  Should some conduct be left to a form of market punishment through private lawsuits?  Should fines be used to fund the criminal justice system?

The answers I offer address some of the most important public policy issues of the moment, such as mass incarceration and the use of fines to finance law enforcement.  The framework of this paper is firmly grounded in rational deterrence policy, and yet points toward reforms that would soften or reduce the scope of criminal punishment.



Why You Should Read The Sentencing Law & Policy Blog

posted by Judge_Burke @ 20:19 PM
September 27, 2018

You will find posts like this, “A new article in Science presents some notable data and observations about drug overdoses over the last 40 years in the US.  This article by six public health researchers is titled “Changing dynamics of the drug overdose epidemic in the United States from 1979 through 2016.” Here is its full abstract:


The epidemic of substance use disorders and drug overdose deaths is a growing public health crisis in the United States.  Every day, 174 people die from drug overdoses. Currently, opioids (including prescription opioids, heroin, and synthetic opioids such as fentanyl and its chemical analogs) are the leading cause of overdose deaths.  The overdose mortality data can reveal the complex and evolving dynamics of drug use in the United States.


Reports on the U.S. drug overdose epidemic tend to focus on changes in yearly statistics. Improved understanding of the long-term dynamics of the overdose epidemic may aid in the development of more effective epidemic prevention and control strategies.  At present, there are no reliable methods to forecast the likely future course of the epidemic. We focused on deaths from overdoses as a relatively reliable metric of the epidemic because all deaths are required to be reported in all U.S. states and territories using the standardized International Classification of Diseases.  In an effort to understand the epidemic dynamics and perhaps predict its future course, we analyzed records of 599,255 deaths from 1979 through 2016 from the National Vital Statistics System where unintentional drug poisoning was identified as the main cause of death.  We examined the time course of the overall number of deaths; the contributions of individual drugs (prescription opioids, heroin, synthetic opioids like fentanyl, methadone, cocaine, methamphetamine) to the overall curve; changes in the populations most affected by each drug as measured by demographic factors of age, sex, race, and urbanicity; and changes in the geographic distribution of deaths due to each drug as measured by the county of residence of each decedent.


The overall mortality rate for unintentional drug poisonings in the United States grew exponentially from 1979 through 2016.  This exponentially increasing mortality rate has tracked along a remarkably smooth trajectory (log linear R2 = 0.99) for at least 38 years (left panel). By contrast, the trajectories of mortality rates from individual drugs have not tracked along exponential trajectories.  Cocaine was a leading cause in 2005–2006, which was overtaken successively by prescription opioids, then heroin, and then synthetic opioids such as fentanyl. The demographic patterns of deaths due to each drug have also shown substantial variability over time.  Until 2010, most deaths were in 40- to 50-year-old persons, from cocaine and increasingly from prescription drugs. Deaths from heroin and then fentanyl have subsequently predominated, affecting younger persons, ages 20 to 40 (middle panel).  Mortality rates for males have exceeded those for females for all drugs. Rates for whites exceeded those for blacks for all opioids, but rates were much greater among blacks for cocaine.  Death rates for prescription drugs were greater for rural than urban populations. The geographic patterns of deaths also vary by drug. Prescription opioid deaths are widespread across the United States (right panel), whereas heroin and fentanyl deaths are predominantly located in the northeastern United States and methamphetamine deaths in the southwestern United States. Cocaine deaths tend to be associated with urban centers. The online manuscript provides many details of the patterns of mortality in these data.


The U.S. drug overdose epidemic has been inexorably tracking along an exponential growth curve since at least 1979.  Although there have been transient periods of minor acceleration or deceleration, the overall drug overdose mortality rate has regularly returned to the exponential growth curve.  This historical pattern of predictable growth for at least 38 years suggests that the current opioid epidemic may be a more recent manifestation of an ongoing longer-term process.  This process may continue along this path for several more years into the future. Paradoxically, there has been substantial variability with which specific drugs have become dominant in varying populations and geographic locales.  This variability all but negates the possibility of confident predictions about the future role of specific drugs.  Indeed, it is possible that a future overdose epidemic may be driven by a new or obscure drug that is not among the leading causes of drug overdose death today. Understanding the forces that are holding multiple subepidemics together onto a smooth exponential trajectory may be important in revealing, and effectively dealing with, the root causes of the epidemic.

Critically, this article makes no effort to suggest any link between overdose data and modern criminal law enforcement efforts described as the “war on drugs.” But I still find remarkable that these data in the article start with a relatively low overdose rate right before the Reagan Administration kicked the war on drugs into high gear. If preventing or reducing deaths from drug overdoses is one goal of the the drug war, this article spotlights just how poorly we have been doing on this particular front of the war over the last four decades.


Quirky Evidentiary Issues With Body Cameras

posted by Judge_Burke @ 21:35 PM
September 26, 2018

Body cameras and squad videos have the potential to change a lot of things in the criminal justice system for the better. But there are evidence issues that accompany the technology that judges (and lawyers) ought to be aware of.

See William & Mary Law School’s Jeffrey Bellin and Shevarma Pemberton’s article, Policing the Admissibility of Body Camera Evidence (Fordham Law Review). Here is the abstract: 

Body-worn cameras are sweeping the nation, becoming, along with the badge and gun, standard issue for police officers. These cameras are intended to ensure accountability for abusive officers. But, if history is any guide, the videos they produce will more commonly be used to prosecute civilians than to document their abuse. Further, knowing that the footage will be available as evidence, police officers have an incentive to narrate body camera videos with descriptive oral statements that support a later prosecution. Captured on an official record that exclusively documents the officer’s perspective, these statements (“he just threw something into the bushes,” “your breath smells of alcohol”) have the potential to be convincing evidence. Their admissibility is complicated, however, by conflicting currents in evidence law.

Oral statements made by officers during an arrest, chase, or other police-civilian interaction will typically constitute hearsay if offered as substantive evidence at a later proceeding. Yet the statements will readily qualify for admission under a variety of hearsay exceptions, including, most intriguingly, the little-used present sense impression exception. At the same time, a number of evidence doctrines generally prohibit the use of official out-of-court statements against criminal defendants. This Article unpacks the conflicting doctrines to introduce a complex, but elegant, pathway for courts to analyze the admissibility of police statements captured on body-worn cameras. The result is that the most normatively problematic statements should be excluded under current doctrine, while many other statements will be admissible, aiding fact finders to assess disputed events.


Risk-Based Assessments

posted by Judge_Burke @ 15:49 PM
September 25, 2018

If insurance companies use risk-based assessments to set your auto and life insurance rates, why not use them in court? There are ardent proponents of risk-based assessments in court as well as quite a few agnostics. 

Christopher Slobogin (Vanderbilt University – Law School) has posted A Defense of Modern Risk-Based Sentencing on SSRN. Here is the abstract:

In theory, accurate assessments of offender risk can save money, promote efficient allocation of correctional resources, and better protect the public. In pursuit of these goals, some jurisdictions have begun using structured means of assessing relative risk. This article briefly describes modern risk assessment instruments, the reasons why they might be preferred over traditional means of assessing risk, and three principles—the fit, validity and fairness principles—that should govern their use. It then contends that, when limited by these or similar principles, criminal justice dispositions can justifiably be based on assessments of risk, despite concerns about their reliability, consistency and legitimacy. Inaccuracy and disparity is as prevalent in desert-based sentencing as it is in risk-based sentencing. More importantly, desert-based sentencing is not as consistent with, and risk-based sentencing is not as inimical to, autonomy and dignity values as is commonly thought. The overall goal of these arguments is to defend modern risk-based sentencing against abolitionist proposals that could do more harm than good, both to offenders and to a punishment system that, at least in the United States, is obscenely harsh.


Thinking About Bail

posted by Judge_Burke @ 16:40 PM
September 24, 2018

There is a lot of discussion in the State Courts about how judges set bail. There are those who passionately argue money bail should be eliminated. There are also skeptics who think that the elimination of cash bail might end with just as many people, or more, held. Pretrial assessments might help. Surely, courage to do what is right might be at the core of any reform effort.

Professor Russell  M. Gold (Wake Forest University – School of Law) has posted Jail as Injunction (Georgetown Law Journal, Vol. 107, 2019) on SSRN. Here is the abstract:

Half a million people sit in jail every day in America who have not been convicted of a crime but stand merely accused. Detention can cost defendants their jobs, housing, or even custody of their children; it takes a toll on their families and communities too. Courts simply ignore that serious harm when deciding whether a defendant should lose her liberty because of a mere accusation of wrongdoing. By contrast, unlike the government in criminal cases that can so often obtain the relief that it seeks before trial—incarcerating the defendant—a civil plaintiff faces quite a challenge to get the relief that she seeks before judgment through a preliminary injunction. To do so, a plaintiff must demonstrate irreparable injury, and the court will afford such relief only after balancing the harms that granting or denying would inflict on each side. This disparity between criminal pretrial detention and civil preliminary injunctions is both troubling and enlightening. It is troubling that the law affords more protection to the property interests of civil defendants than the liberty interests of criminal defendants who are purportedly presumed innocent.

But in this historical moment where pretrial detention and bail systems are changing in many jurisdictions, the preliminary injunction comparison offers a valuable lens through which to reconceptualize pretrial detention. A more civil-like approach to pretrial detention would raise the threshold of government interest necessary to justify detaining the accused to something akin to irreparable injury—not some minimal likelihood that the defendant might forget to appear in court or be arrested for jaywalking. As in the civil system, criminal courts should not simply ignore that a defendant may lose her job, housing, or custody of a child. Rather, courts should consider those costs to defendants, their loved ones, and the broader public and detain defendants only when the benefits of detention outweigh those substantial costs. Lastly, courts should require the government to demonstrate likelihood of success on the merits with evidence subject to refutation by the defendant to detain the defendant. Such additional process would increase costs on the front end, but it could lead to lower costs of pretrial detention, post-trial incarceration, and recidivism caused by criminogenic jails and prisons.


Fines and Fees

posted by Judge_Burke @ 18:01 PM
September 19, 2018

Some of you may know about the Fines & Fees Justice Center. My guess is, at least a number of you, may not. Former Judge Lisa Foster is a driving force behind the Center. Lisa is a friend of Judge Mark Kappelhoff. She served on the trial court in California for ten years and then  in the Obama Justice Department.

The web site for the Fees & Fines Justice Center is Here is the September FFJC Newsletter:

FFJC Newsletter, September 2018

FFJC In the News

For the Washington Post, FFJC Co-Director Joanna Weiss and Tzedek DC President Ariel Levinson-Waldman write in support of legislation that would end license suspensions for unpaid traffic debt in Washington, D.C. & require the DMV to restore suspended licenses. “Arresting people too poor to pay doesn’t make us any safer and does nothing to get fines and penalties paid. Rather, those arrests make us less safe by destabilizing families and by diverting law enforcement resources from crime.”

Fines and Fees Reform News

This month, California Governor Jerry Brown signed into law a bill that will eliminate prosecution fees and prohibit cities from charging residents the cost of legal services used to prosecute them. This law is a direct result of excellent reporting from Desert Sun reporter Brett Kelman, who published a five-part investigative series about the harms of private prosecution firms hired by municipalities and related attorney’s fees in Coachella and Indio. The third part of that series details a lawsuit filed by plaintiff Ramona Morales, who paid $6,000 in attorney’s fees because of a chicken coop on her property.

Morales was represented by the Institute for Justice, who have created a fantastic video about the lawsuit.

In August, San Francisco’s Superior Court ordered the county to waive a staggering $32 million in fees owed by more than 21,000 residents. One formerly incarcerated man reports that this move will reduce his criminal justice debt from $2,725 to $640. The county projects that it will lose about $1 million annually as a result of this decision, and it will fill in the gap with budgetary allocations. In related news, the Alameda County Board of Supervisors’ Public Protection Committee recommended that the full board approve the elimination of court fees for people who are convicted of crimes. Alameda County eliminated juvenile fines and fees in 2016.
In the early days of 2018’s nationwide prison strike, Texas’ Department of Criminal Justice voted to reduce the cost of prison phone calls from $0.26 per minute to $0.06 per minute. In 2017, the phone system brought in $14.49 million for the crime victims’ fund and $4.49 million for general revenue. In related, less fortunate news, driver’s license suspensions are driving Texans deep into debt. Originally, the automatic license suspension policy was conceived as a funding mechanism for Texan trauma centers, but now many Republican and Democratic lawmakers are saying that this practice creates a “permanent underclass, dividing society by those who can pay the fines and those who can’t.”


In Tennessee, Davidson County District Attorney Glenn Funk announced that he will stop prosecuting driver’s license violations that result from failure to pay fines and fees, such as driving on a suspended license. This is an important example of how prosecutors can work toward reform, and other DAs should follow his lead. Until we stop suspending driver’s licenses for unpaid fines and fees, prosecutors should stop wasting criminal justice resources on crimes of poverty.


In Maricopa County, AZ, Civil Rights Corps is representing plaintiffs who allege that the county attorney’s office pressures defendants in marijuana possession cases to participate in a diversion program that will cost them $950 plus weekly charges for drug and alcohol testing. The lawsuit claims that the county attorney threatened defendants with incarceration and six-figure fines unless they participated in the diversion program. In 2016, the Arizona Republic reported that legalizing marijuana would cost the county attorney’s office millions in diversion fees (about $1.6 million annually).


The Oregon Law Center is representing five plaintiffs who have had their driver’s licenses suspended for years because they can’t afford to pay their spiraling debt from traffic violations. They want a federal judge to order the state to halt license suspensions for traffic fines until the Oregon DMV gives drivers a chance to demonstrate their inability to pay. If a driver can’t pay the fines, they say the state should exempt that motorist from losing a license. The plaintiffs argue the state’s current suspensions violate the due process rights of low-income people and are discriminatory.


According to a new report from the Juvenile Law Center, the families of children charged with crimes can be directly billed or assessed fees to cover the cost of legal representation in all but 10 U.S. states. “Any time you touch the juvenile justice system, you need an attorney, while other costs are only implicated when a child is placed in custody or services,” said staff attorney Nadia Mozaffar.
For the Los Angeles Times, Jeffrey Selbin of the Berkeley Policy Advocacy Clinic — and an FFJC Advisory Board member — argues that California should cease collections for all juvenile detention fees. This piece comes as the LA County Board of Supervisors is expected to vote in September to cancel nearly $90 million in fees imposed on families that have had children in the juvenile detention system. In related news, last month the LAPD floated the “radical solution” of eliminating old bench warrants for homeless people to unburden crowded court dockets and create a way out of the vicious carceral cycle that plagues LA’s homeless population.



As you can see from this edition of the newsletter, there is a lot of activity around the country focusing on reforming when and how fines and fees should be imposed.  I am not suggesting that anyone revolt, but as you can see from just this newsletter there is a lot of activity on this topic around the country. Over the years we have seen a huge growth in fines, fees, probation costs, mandatory program cost assessments and surcharges throughout the country.  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.” Each of us needs to decide where to devote our time and what issues to focus on. But the essence of a fair and effective criminal justice system surely is what unites us all. For what it is worth, I think we have a problem with fines and fees in far too many courts,  While there may not be any simple solution to this, to paraphrase the folks in recovery, the “first step is to admit you have a problem.”


Impeachment Of State Supreme Courts Is A Dangerous Trend

posted by Judge_Burke @ 20:59 PM
September 13, 2018

There are scoundrels who become judges and there are judges who, after taking office, become scoundrels. So reflexively defending every judge who is the subject of impeachment does the judiciary no good.  Governing Magazine points out there is a trend that should make people at least nervous. “Attacks on judicial independence are becoming more frequent and more partisan. The current effort to impeach the entire West Virginia Supreme Court, while not unprecedented, is taking place against a backdrop of political attacks against judges elsewhere.

“There’s a kind of a war going on between the legislatures and the courts,” says Chris Bonneau, a political scientist at the University of Pittsburgh. “Absolutely, we’re seeing a new environment.”

The West Virginia House last month voted to impeach all the sitting justices on the state Supreme Court. The state Senate is set to begin its impeachment trial Tuesday. There were legitimate reasons for legislators to go after justices, or at least some of them.

In June, Chief Justice Allen Loughry was charged with 22 criminal counts, including fraud and witness tampering. Two weeks ago, Justice Menis Ketchum pleaded guilty to fraud. The court as a whole has been accused of lavish spending, including purchases of expensive custom-made office furniture. This is also the court that triggered the U.S. Supreme Court to rule in 2009 that a justice should have recused himself from a case involving a coal company after it donated $3 million to his campaign.

“The West Virginia Supreme Court is kind of a battered one,” says Michael Nelson, a political scientist at Penn State University. “It’s a particularly weak court to attack because its credibility has been debated.”

Nonetheless, West Virginia Democrats have accused Republicans of staging a coup by impeaching the entire court. The allegations of criminal impropriety had been known for months, but legislators waited until last month to act — missing a deadline to let voters, rather than the governor, fill any vacancies. (Justice Robin Davis resigned, rather than face an impeachment trial, to give voters a chance to pick her replacement.) Republican Gov. Jim Justice did little to assuage complaints of partisan meddling in the courts by appointing two politicians, state House Speaker Tim Armstead and Congressman Evan Jenkins, to interim posts on the court last week. It’s not unheard of for sitting politicians to be appointed to court seats, but it’s not the common practice.

Judicial impeachments actually were rather common in earlier eras. During the 19th century, for instance, New Hampshire’s legislature made a habit of clearing out the entire state Supreme Court, doing so on at least five occasions.

In the 20th century, impeachments became increasingly rare. In most instances, talk of impeachment has been just that, with legislators stopping short of actually filing resolutions to get rid of jurists.

See also:

Judicial Redistricting: Issue Politicians Don’t Want to Discuss

The Arcane Question That Will Decide the Fate of Florida’s Supreme Court

Judges Face Growing Threats From Unhappy Politicians


Everything You Wanted To Know About Race, Poverty & Bail

posted by Judge_Burke @ 20:00 PM
September 11, 2018

Clanitra Stewart Nejdl (Northern Illinois University College of Law) has posted Race, Poverty, and Bail: An Annotated Bibliography (Northern Illinois University Law Review, Vol. 38, No. 3, Summer 2018) on SSRN. Here is the abstract:

This Annotated Bibliography directs the reader to selected law review and law journal articles focusing on the impact a defendant’s race and income level have on bail and pretrial release decisions. The works included were published between the years 2000 and 2018 and are listed in chronological order.​


Professor David Wexler

posted by Judge_Burke @ 20:02 PM
September 10, 2018

The majority of AJA members likely do not know Professor David Wexler. Academics and sitting judges have a fairly poor way of communicating with each other. But he was, and remains, an important scholar in an area judges care deeply about. Michael L. Perlin (New York Law School) has posted ‘Changing of the Guards’: David Wexler, Therapeutic Jurisprudence, and the Transformation of Legal Scholarship on SSRN. Here is the abstract:

This article – a tribute to Professor David Wexler – explores how and why the idea of therapeutic jurisprudence first came to him, traces its early development, and contextualizes it in the changes in modern mental disability law in the 1980s. It then sketches out the core principles of this school of legal thought, and considers its expansion beyond mental disability law, both substantively (as it was applied to other areas of the law, some related to mental disability law, and some totally different), procedurally (considerations of how therapeutic jurisprudence methodologies could restructure all of the legal system, including the role of courts, legislatures, administrative agencies and lawyers), and professionally (as others beyond lawyers began to embrace it). Finally, it speculates as to the future, using as its fulcrum the just-created International Society of Therapeutic Jurisprudence.​



When should You Agree To Change Venue?

posted by Judge_Burke @ 21:51 PM
September 7, 2018

There are those who claim judges in high-profile criminal trials almost never change venue to afford defendants fair trial rights even where there is manifest prejudice in media coverage of the underlying crime.

Perhaps they are right.

But in fairness, we live in an age where high profile cases generate media coverage far more widespread that historically happened.

For a discussion see  Psychology, Public Policy, and Law.