Archive for February, 2019

Juvenile Risk Assessments

posted by Judge_Burke @ 21:32 PM
February 28, 2019

Richard Berk (University of Pennsylvania) has posted an abstract of Accuracy and Fairness for Juvenile Justice Risk Assessments (Journal of Empirical Legal Studies, Vol. 16, Issue 1, pp. 175-194, 2019). Here is the abstract:

Risk assessment algorithms used in criminal justice settings are often said to introduce “bias.” But such charges can conflate an algorithm’s performance with bias in the data used to train the algorithm with bias in the actions undertaken with an algorithm’s output. In this article, algorithms themselves are the focus. Tradeoffs between different kinds of fairness and between fairness and accuracy are illustrated using an algorithmic application to juvenile justice data. Given potential bias in training data, can risk assessment algorithms improve fairness and, if so, with what consequences for accuracy? Although statisticians and computer scientists can document the tradeoffs, they cannot provide technical solutions that satisfy all fairness and accuracy objectives. In the end, it falls to stakeholders to do the required balancing using legal and legislative procedures, just as it always has.


What Is A Reasonable Wage For A Juror?

posted by Judge_Burke @ 21:12 PM
February 26, 2019

From Maxwell Burke’s blog:

Ryan Rocha, et al. v. King County, No. 51823-6-II (Wash. Ct. App. Feb. 21, 2019)

Each plaintiff had been summoned for jury duty in King County, Washington; one served 11 days of jury duty and the other was granted an economic hardship excuse by the court. Slip op., p.1. The plaintiffs thereafter sued King County, “alleging that King County’s jury pay disparately excluded jurors from service based on economic status and that jurors were entitled to be paid minimum wage for their service.” p.2. The trial court granted summary judgment in favor of King County, dismissing the plaintiffs’ claims. Id.

Division II of the court of appeals affirmed the trial court’s decision.

Regarding the disparate impact claim, the court held that “[e]conomic status is not recognized as a protected class under the” Washington Law Against Discrimination, ch. 49.60 RCW. Slip op., p.3 (citing RCW 49.60.030(1)). Because the plaintiffs “did not plead a disparate impact claim under the equal protection clause in the superior court nor do they argue a constitutional disparate impact claim on appeal,” the court declined to address whether they established a constitutional disparate impact claim. p.4/

The court also rejected the plaintiffs’ argument that they were entitled to relief under the “no juror exclusion” statute, which provides that a “citizen shall not be excluded from jury service in this state on account of . . . economic status.” p.5 (quoting RCW 2.36.080(3)). That statute does not explicitly provide a remedy for violations of the relevant provision. Id. Further, the plaintiffs failed to show that RCW 2.36.080(3) created an implied cause of action under Bennett v. Hardy, 113 Wn.2d 912, 783 P.2d 1258 (1990). p.7 Analyzing the statute under the Bennett test, the court held in pertinent part that the “legislature did not intend to guarantee jurors be able to serve by providing adequate financial compensation. Therefore, it would be inconsistent with the legislative intent to imply a remedy based on jurors’ financial compensation for alleged violations of RCW 2.36.080(3).” Id.

The court also rejected the argument that King County violated the Washington Minimum Wage Act (MWA), ch. 49.46 RCW. The court held that the jurors do not meet the definition of “employee” under the MWA; the MWA “does not transform the fundamental nature of jury service as a civic duty.” p.11.

Finally, though the trial did not address the issue, the appellate court held that the plaintiffs lacked standing to seek a declaratory judgment under both RCW 2.36.080(3) and the MWA. p.12.

Judge Bjorgen filed a dissenting opinion. pp.14-25.


The Center For Court Innovation On Misdemeanors

posted by Judge_Burke @ 20:23 PM
February 25, 2019


Eighty percent of the cases in American criminal courts are misdemeanors.  On any given day, more than 220,000 people are behind bars for a minor offense.  That’s too many.

We have long been dedicated to reducing the number of minor cases that end up behind bars through path-breaking programs like the Midtown Community Court, Red Hook Community Justice Center, and Bronx Community Solutions, which offer meaningful alternatives to incarceration.

We have also made a deep investment in pre-court diversion by launching Project Reset with the support of local prosecutors and police. A new evaluation documents that Project Reset cases were resolved 72 percent faster, and participants had fewer new arrests and new convictions compared to arrestees who experienced conventional prosecution.
We are focusing on the importance of rethinking misdemeanor justice by highlighting new research, cutting-edge thinkers, and valuable resources for reformers. This includes a number of special episodes of our New Thinking podcast, such as this interview with scholar Alexandra Natapoff, who describes the American misdemeanor system as an engine of racial and social inequality.

Join the conversation around #MisdemeanorsMatter and add your voice in support of a fair, effective, and humane justice system for all.

See more here.


And For Your Next Judicial Trivia Contest…

posted by Judge_Burke @ 22:04 PM
February 22, 2019

…New Hampshire’s highest court upheld the conviction of three women who were arrested for going topless on a beach, finding their constitutional rights were not violated.In a 3-2 ruling, the court decided that Laconia’s ordinance does not discriminate on the basis of gender or violate the women’s right to free speech.

Citing rulings by several other courts, Associate Justice Anna Barbara Hantz Marconi wrote that courts “generally upheld laws that prohibit women but not men from exposing their breasts against equal protection challenges.”“We have found that the ordinance does not violate the defendants’ constitutional rights to equal protection or freedom of speech under the State and Federal Constitutions,” Marconi wrote. “As such, it does not unduly restrict the defendants’ fundamental rights. Accordingly, we agree with the trial court that the City had the authority to enact the ordinance.”

In a dissenting opinion, Associate Justice James P. Bassett with Senior Associate Justice Gary E. Hicks concluded the ordinance was unconstitutional because it treats men and women different. You can access the 3-to-2 ruling of the Supreme Court of New Hampshire at this link.


Maybe The Most Blatant Attempt At Judicial Intimidation?

posted by Judge_Burke @ 22:06 PM
February 21, 2019

West Virginia: legislature moves to withhold judicial retirement benefits until state supreme court overturns a ruling


Last year’s attempt by the West Virginia legislature to impeach and remove from office several members of the state’s supreme court effectively ended with the supreme court ruled the impeachment proceedings were unconstitutional. (State ex. rel. Workman v. Carmichael) Now members of the legislature have moved to withhold judicial retirement benefits unless that decision is overturned.

Under SB 398 as amended recently by the House Judiciary committee, the payments for retirement benefits would cease unless Workman v. Carmichael is overturned.

Until State ex. rel. Workman v. Carmichael is overturned by the Court, and the Court fully recognizes that it has no legitimate constitutional authority over the powers of impeachment that solely belong to the Legislature, even in the case of limited judicial review, then the Legislature shall not fund the Judges’ Retirement System as set forth in this article.

The lead proponent argues that the move is an effort to check the courts. Opponents claim it violates the separation of power. What Do you Think?


An Important Decision On Fines And Forfeitures

posted by Judge_Burke @ 22:18 PM
February 20, 2019

The United States Supreme Court ruled unanimously that the Constitution’s prohibition on excessive fines applies to state and local governments, limiting their abilities to impose fines and seize property.

The opinion states “For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties,” Ginsburg wrote. “Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies. . . . Even absent a political motive, fines may be employed in a measure out of accord with the penal goals of retribution and deterrence.”

Justice Ruth Bader Ginsburg delivered the opinion of the Court in Timbs v. Indiana, No. 17-1091. Justice Gorsuch issued a concurring opinion. And Justice Clarence Thomas issued an opinion concurring in the judgment. You can access the oral argument via this link.



You said what?

posted by Judge_Burke @ 15:39 PM
February 15, 2019

If you have a Google alert for “judicial ethics” you are not surprised to find that there are judges in the United States and Canada who say some really outlandish things. There is a recent comment by a judge in Kansas about young girls (the victims) who were the aggressors. There is the Canadian judge who asked why you could not just keep your knees together. It is depressing.  Michaël Lessard (New York University (NYU), School of Law) has posted an abstract of  Why Couldn’t You Just Keep Your Knees Together? L’obligation déontologique des juges face aux victimes de violences sexuelles [trans. 'The Ethics of Judging Sexual Assault Cases'] ((2017) 63:1 McGill Law Journal 155) on SSRN. Here is the abstract:

In recent years, high-profile cases have shed light on the behaviour of certain judges towards victims of sexual violence, thus undermining public confidence and victims’ confidence in the judicial system. Among these cases, there is the one of Judge Robin Camp who asked a victim: “why couldn’t you just keep your knees together?” This statement has had the effect of putting the spotlight on a section of the judiciary which still contributes to the myth of the “good victim” (or “perfect victim”).

In this text, I argue that judges commit a breach of judicial ethics when they make a remark or a statement that (1) is likely to maintain the myth of the good victim, (2) participates in one of the four related stereotypes condemned in law and (3) is not justified by its relevance and necessity for legal reasoning.

The article is divided into three parts. In Part I, I briefly describe the stereotypes covered by my proposal. It is limited to the four stereotypes that are part of the myth of the good victim and would constitute an error of law if they were the foundation of a legal reasoning. These four stereotypes are: (i) a sexually active woman is more inclined to consent and therefore less credible; (ii) a woman who does not report her attacker immediately after the assault is not credible; (iii) a woman who did not resist aggression surely consented; and (iv) a woman in therapy is more likely to lie. Legal reasoning based on any of these stereotypes would be affected by an error of law. In Part II, I discuss the legal basis of the ethical obligation not to promote the myth of the good victim. In Part III, I illustrate my proposition by reviewing the judgment of Justice William B. Horkins in R. v. Ghomeshi.


A History-Making Appointment To The North Carolina Supreme Court

posted by Judge_Burke @ 20:58 PM
February 14, 2019

The next chief justice of the North Carolina Supreme Court will be Cheri Beasley, N.C. Gov. Roy Cooper announced Tuesday.

Beasley will make history as the first black woman to be the state’s top judge.

“This is not the North Carolina of 200 years ago,” she said in the press conference at the Governor’s Mansion where Cooper announced her new role.

Beasley has been a judge for the last 20 years and has been on the Supreme Court since 2012. She was a public defender in Fayetteville before becoming a judge.

Judges in North Carolina are usually elected, not appointed. But when former Chief Justice Mark Martin announced in January that he would retire this month, to take a job leading a Virginia law school, state law gave Cooper the power to pick someone to take Martin’s place.

Since Cooper picked a current Supreme Court judge to replace Martin, that means Beasley’s  associate justice seat will also become vacant, and Cooper will need to appoint someone else to take it. Cooper said he will announce his pick for that seat later.



Do You Want to Talk With Chief Justice Roberts?

posted by Judge_Burke @ 20:34 PM
February 13, 2019

“A Conversation with Chief Justice John Roberts”: Belmont University has posted this video on YouTube.




Ok so I tricked you into thinking it is a live conversation.


Drone Law? Really?

posted by Judge_Burke @ 22:08 PM
February 12, 2019

The vast majority of judges are likely to go through their entire career never having a police drone case………or maybe not.

Jennifer Bentley (University of California, Hastings College of the Law, Students) has posted Policing the Police: Balancing the Right to Privacy Against the Beneficial Use of Drone Technology (70 Hastings L.J. 249 (2018)) on SSRN. Here is the abstract:

The cost of buying, operating, and maintaining manned aircraft traditionally limited the government’s ability to conduct widespread aerial surveillance. But drone technology is eroding this natural limit because they are cheaper, stealthier, and can be used as a platform for other powerful surveillance tools. Drones are ideally suited for numerous law enforcement tasks such as search and rescue, crime scene investigations, and gaining a bird’s-eye view in dangerous active shooter or hostage situations. Privacy rights advocates fear that drone capabilities are bringing us closer to a “surveillance society” in which our every move is monitored, recorded, and scrutinized by the government, and have led the fight to either require police to obtain a warrant before using a drone or to ban the use of drones altogether. At the federal government level, only the FAA regulates drones but the Agency considers privacy outside the scope of its authority. Approximately one-third of states require law enforcement to obtain a warrant prior to using a drone to conduct a search or surveillance. A handful of local governments have banned the use of drones by law enforcement entirely in response to privacy concerns. However, overly broad restrictions on drone use have an unintended consequence in that they also curtail non-invasive, beneficial uses of drones. The Fourth Amendment likely does not protect individuals from warrantless drone surveillance provided the drone does not physically trespass and only captures what is visible from public airspace. This Note considers the twin harms of a surveillance society and depriving law enforcement of the beneficial uses of drones and concludes that states, as the laboratories of democracy, must act to reign in the use of unmanned aircraft by law enforcement so that public backlash against the threat to privacy does not result in the total deprivation of this useful technology.