Archive for January, 2019

News About Fines & Fees

posted by Judge_Burke @ 18:00 PM
January 16, 2019

For USA TODAY, FFJC’s Lisa Foster and Fair and Just Prosecution’s Miriam Krinsky argue that prosecutors can improve criminal justice fairness and eliminate perverse incentives by changing their fines and fees practices and advocating for policy changes. “Fines and fees are regressive & disproportionately impact low-income communities of color, serving mainly to perpetuate cycles of debt & incarceration. This framework diverts law enforcement resources from the job of solving serious crime and uses scarce resources to collect revenue.”

In The New York Times Magazine, Matthew Shaer investigates fines and fees practices across America, consulting FFJC Co-Director Joanna Weiss among many others: “Cities use the justice system to wring revenue out of the poorest Americans — the people who can afford it the least. Criminal-justice debt is now a de facto way of funding a lot of American cities.” This lengthy piece is well worth your time.

For the New York Daily News, Errol Louis argues that New York should stop suspending driver’s licenses to coerce payment of fines and fees, noting that FFJC has launched a campaign in New York to do just that. FFJC is working in partnership with the National Center for Law and Economic Justice and the Bronx Defenders to end driver’s license suspensions that are driven by poverty.


Forensic Evidence & The Confrontation Clause

posted by Judge_Burke @ 20:29 PM
January 14, 2019

Ronald J. Coleman and Paul F. Rothstein (Georgetown University Law Center and Georgetown University Law Center) have posted A Game of Katso and Mouse: Current Theories for Getting Forensic Analysis Evidence Past the Confrontation Clause (American Criminal Law Review (Forthcoming)) on SSRN. Here is the abstract:

The Sixth Amendment’s Confrontation Clause ensures that an “accused” in a “criminal prosecution[]” has the right “to be confronted with the witnesses against him [.]” Although perhaps a simple concept, defining the scope of confrontation rights has proved extremely difficult. The law has had particular difficulty scoping confrontation rights in forensic analysis cases, such as those where the prosecution seeks to utilize a laboratory report of DNA, blood alcohol content, narcotics, or other “CSI” type analysis. In this connection, Justice Gorsuch recently authored an opinion dissenting from denial of certiorari in Stuart v. Alabama, in which he recognized the “decisive role” of forensic evidence in modern criminal trials, but decried the lack of clarity in this area of law. The purpose of this Article is to analyze modern Confrontation Clause and forensic analysis jurisprudence, and to present six theories or gateways through which to argue that forensic analysis evidence is admissible consistent with the Clause. The theories presented in this Article are not intended to be employed individually, but rather combined to diminish the possibility that the Confrontation Clause will necessitate exclusion. To aid in the presentation of these theories, the Article will discuss the recent illustrative cases of U.S. v. Katso and Stuart v. Alabama, and explore how local stakeholders might utilize Katso-like reasoning to support their positions.


Thinking About Sentencing Disparity

posted by Judge_Burke @ 21:35 PM
January 9, 2019

The luck of the draw in federal sentencing.

“In most cities, the length of a defendant’s sentence increasingly depends on which judge in the courthouse is assigned to his or her case,” concludes a new report that analyzed the sentencing practices of federal trial judges in 30 major cities.

Disparities in sentences are growing as judges move away from the “mandatory” requirements of sentencing guidelines. So if there is a luck of the draw in federal courthouses what about your courthouse?

Most people are not federal court defendants but are defendants in state (or Canadian) courts.

What steps should judges take to reduce disparity? It is not a question easily answered. Judges differ at an appellate level why should anyone expect something different at the trial court? Perhaps a starting point is data collection.

It it plausible that there is not as much difference in sentencing in your courthouse. But maybe there is…  see SENTENCING LAW AND POLICY for more.


The Developing Brain

posted by Judge_Burke @ 21:48 PM
January 8, 2019

Susan Frelich AppletonDeanna M. Barch and Anneliese Schaefer (Washington University in St. Louis – School of Law, Washington University in St. Louis – Department of Psychological and Brain Sciences and Washington University in St Louis – Department of Neurology) have posted The Developing Brain: New Directions in Science, Policy, and Law–Introduction (57 Washington University Journal of Law & Policy 1 (2018)) on SSRN. Here is the abstract:

Scientific findings on brain development increasingly are influencing how we understand children’s social and emotional development and how we interpret their behavior. Such understandings and interpretations, in turn, can shape public policy and legal precedent, as shown by the U.S. Supreme Court’s recognition of constitutional limitations on criminal punishments imposed on young offenders.

This essay introduces a transdisciplinary symposium that explores new learning about the negative impact of “early stressors” on brain development and the opportunities that such learning presents for law and policy reforms.

he symposium, part of a Washington University initiative on Neuroscience and Society, builds on the influence that neuroscience has already exerted on criminal law and juvenile justice and examines both the promise and the challenges of attempting to replicate this relationship in other contexts. For example, one challenge emerges from American jurisprudence’s distinction between constitutional limits on government action (as in the juvenile justice cases) versus calls for government support in response to demonstrated individual and societal benefits (as in interventions to minimize early stressors).

The symposium contributions reflect the diverse expertise of the authors—including law, medicine, neuroscience, psychology, economics, public health, and social work, as well as insights from those with on-the-ground experience in policy making and implementation. Thanks to the wide array of perspectives, the symposium presents a conversation not only about how neuroscience might influence law and policy but also about how neuroscientists can undertake research that would prove most useful in influencing law and policy. For the full symposium, entitled Bringing Science to Law and Policy, see volume 57 of the Washington University Journal of Law & Policy (available online).


Thoughts About Sentencing

posted by Judge_Burke @ 19:24 PM
January 4, 2019

Michael Tonry (University of Minnesota – Twin Cities – School of Law) has posted two articles on SSRN. Professor Tonry is among the nation’s most thoughtful scholars on sentencing.  The first is Predictions of Dangerousness in Sentencing: Déjà Vu All Over Again (Crime and Justice—A Review of Research, Forthcoming). Here is the abstract:

Predictions of dangerousness are more often wrong than right, use information they shouldn’t, and disproportionately damage minority offenders. Forty years ago, two-thirds of people predicted to be violent were not. For every two “true positives,” there were four “false positives.” Contemporary technology is little better: at best, three false positives for every two true positives. The best-informed specialists say that accuracy topped out a decade ago; further improvement is unlikely. All prediction instruments use ethically unjustifiable information. Most include variables such as youth and gender that are as unjust as race or eye color would be. No one can justly be blamed for being blue-eyed, young, male, or dark-skinned. All prediction instruments incorporate socioeconomic status variables that cause black, other minority, and disadvantaged offenders to be treated more harshly than white and privileged offenders. All use criminal history variables that are inflated for black and other minority offenders by deliberate and implicit bias, racially disparate practices, profiling, and drug law enforcement that targets minority individuals and neighborhoods.

The second is Fifty Years of American Sentencing Reform — Nine Lessons (Crime and Justice—A Review of Research, Forthcoming). Here is the abstract:

Efforts to standardize sentences and eliminate disparities in a state or the federal system cannot succeed; distinctive practices and norms, diverse local cultures, and practical and political needs of officials and agencies assure major local differences in sentencing practice. Presumptive sentencing guidelines developed by sentencing commissions, however, are the most effective means to improve consistency, reduce disparity, and control corrections spending. Federal sentencing guidelines have been remarkably unsuccessful; they should be rebuilt from the ground up. Mandatory sentencing laws should be repealed, and no new ones enacted; they produce countless injustices, encourage cynical circumventions, and seldom achieve demonstrable reductions in crime. Black and Hispanic defendants are more likely than whites and Asians to be sentenced to imprisonment, and for longer; presumptive sentencing guidelines reduced racial disparities initially and over time, but most states do not have presumptive guidelines. Use of predictions of dangerousness to determine who is imprisoned and for how long is unjust; predictive accuracy has improved little in 50 years and current methods too often lengthen prison terms of people who would not have committed violent crimes. Except in the handful of states that have effective systems of presumptive sentencing guidelines, parole release is an essential component of a just and cost-effective sentencing system in the United States.


Civil Therapeutic Courts?

posted by Judge_Burke @ 20:56 PM
January 3, 2019

A Theory of Civil Problem-Solving Courts

by Jessica Steinberg, George Washington University – Law School, New York University Law Review, Vol. 93, 2018, Forthcoming. Here is the abstract:

This article is the first to develop a problem-solving theory for the civil justice system. Drug courts pioneered the problem-solving model in the 1990s to pursue therapeutic goals as an alternative to “assembly line” sentencing. This Article explores the potential for migration of the drug court framework into the two most commonly adjudicated civil cases: rental housing and consumer debt.

Three structural conditions in the civil courts—high-volume dockets, systemic lack of counsel, and corporate capture of the small claims process—routinely position vulnerable classes of individuals on the losing end of litigation. In the aggregate, these conditions have rendered the civil justice system predictably ineffective in combatting recurring social issues such as substandard housing and unscrupulous debt collection. The heart of the problem-solving theory in drug courts is the availability of an alternative remedy: treatment over prison. In civil courts, the remedy itself is not necessarily deficient; it is access to the remedy that is compromised. Relying on two years of field research in an experimental court, this Article demonstrates how core drug court principles, such as naming the purpose of the court as solving a social problem, interdisciplinary collaboration, and a strong judicial role, can be manipulated to address process failures in the civil justice system and reimagine the courts as proactive institutions responsible for the pursuit of socially beneficial outcomes.

The Article also argues that a civil problem-solving theory survives many of the valid critiques levied against drug courts. In particular, drug courts have come under fire for playing a moralizing role and using compulsory treatment as a form of social control. A civil problem-solving court, however, would not exacerbate the negative impact of state power on already over-burdened groups. Instead, the targets of monitoring and behavior modification are the more powerful private actors to the litigation, such as property owners and debt buyers, who otherwise have been known to manipulate the courts—an instrument of the state—to evade their legal obligations and suppress individual rights.


A Court by Any Other Name

posted by Judge_Burke @ 0:36 AM
January 2, 2019

Hon. Peggy Hora (Ret.) posted this article to the Justice Speakers Institute:

Drug Treatment Courts (DTC) and those that have a similar outlook have been called “problem-solving, accountability, behavioral justice, therapeutic, problem oriented, collaborative justice, outcome oriented and constructive intervention courts.”1 All rely on therapeutic jurisprudence and non-adversarial justice and all designations refer to a different way of doing business where the focus is on treatment and recovery rather than adjudication and disposition.

Therapeutic Jurisprudence

It all began with the development of Therapeutic Jurisprudence(TJ) in the late 1980s.  The term was first used by Professor David B. Wexler,  Distinguished Research Professor of Law at the James E. Rogers College of Law, Tucson, Arizona, Professor of Law at the University of Puerto Rico and the Director of the International Network on Therapeutic Jurisprudence, in a paper delivered to the National Institute of Mental Health in 1987. Along with the late Professor Bruce Winick, Silvers-Rubenstein Distinguished Professor of Law and Professor of Psychiatry and Behavioral Sciences at the University of Miami in Coral Gables, Florida, they suggested the need for a new perspective, TJ, to study the extent to which substantive rules, legal procedures, and the role of legal actors (lawyers and judges primarily) produce therapeutic or antitherapeutic consequences for individuals involved in the legal process.

Ten years later, Judges William Schma, Circuit Court in Kalamazoo, Michigan and Peggy Fulton Hora, Superior Court of California, were experienced drug treatment court judges who were interested in finding a jurisprudential basis for the DTC movement.  They found Wexler and Winick’s work, and, after meeting with them, decided it was a good fit.  In 1999 they, along with John T.A. Rosenthal, published the first article linking TJ with DTCs,2 “Therapeutic Jurisprudence and the Drug Treatment Court Movement: Revolutionizing the Criminal Justice System’s Response to Drug Abuse and Crime in America.”

The Conference of Chief Justices and the Conference of State Court Administrators appointed a Joint Task Force “to consider the policy and administrative implications of the courts and special calendars that utilize the principles of therapeutic jurisprudence and to advance strategies, policies and recommendations on the future of these courts.”3  They were presented with a resolution supporting and encouraging the dissemination of therapeutic jurisprudence theory in the nation’s court system through DTCs. There was an objection to the words “therapeutic jurisprudence” and the body adopted “Problem-Solving Courts” as the appropriate name.  The resolution, passed in August of 2000, said it was “recognizing that courts have always been involved in attempting to resolve disputes and problems in society, but understanding that the collaborative nature of these new efforts deserves recognition.”4

Solution Focused Courts

Another decade or so later, Magistrate Michael King in Australia developed a bench book5 on these types of courts and found “solution-focused” to be a better term.

“The processes the court uses to develop solutions—therapeutic, inclusive of participants and the court team—and in the concept of the solution that is being sought—addressing underlying issues and promoting an ability to lead a constructive, happy and law-abiding life in the community.”6

“…[T]he concept of a ‘problem-solving court’ does not recognize the centrality of participants in bringing about their rehabilitation. Rather, it implies that it is the court that solves the problem. This is not simply an issue with terminology. An examination of the underlying principles of different types of problem-solving courts—with the exception of some mental health courts—suggests they give inadequate weight to or ignore the central importance of participants being involved in decision-making concerning their rehabilitation in order to foster internal sources of motivation to change.”7

Somewhere along the way, the term “problem-oriented courts” was developed in Australia.  However, the Law Reform Commission of Western Australia had a quarrel with that terminology.  The Commission chose to use the term “court intervention programs” instead of the term “problem-oriented courts.”

They Are All the Same Kind of Court

Irrespective of the name such a court is called, the shared principles are:

  • Outcomes are the focus of the process, not traditional adversarial issues.
  • Procedural Justice/Fairness is fundamental to the process.
  • Decisions and procedures are evidence-based, manualized and there is fidelity to the model.
  • Decisions by the judge come after hearing from all the collaborative members of the team.
  • All principals of the Criminal Justice System are part of the team.
  • Focusing on addressing the underlying cause that triggered the current behavior.

Finally, we know that outcomes in these courts are better for the individual, his or her family, the community both through cost savings and reduction of crime and the judge.8

Read the full article with footnotes on the Justice Speakers Institute website.