Archive for March, 2019

Darn I Hope To Issue A Few Orders After I Die

posted by Judge_Burke @ 19:15 PM
March 26, 2019


A judge on the United States Court of Appeals for the Ninth Circuit, the Honorable Stephen Reinhardt, died on March 29, 2018, but the Ninth Circuit counted his vote in cases decided after that date.

The Supreme Court of the United States noted that in “the present case, Judge Reinhardt was listed as the author of an en banc decision issued on April 9, 2018, 11 days after he passed away. By counting Judge Reinhardt’s vote, the court deemed Judge Reinhardt’s opinion to be a majority opinion, which means that it constitutes a precedent that all future Ninth Cir­cuit panels must follow”.

The Unites States Supreme Court concluded that “federal judge” are appointed for “life, not for eternity”:

Because Judge Reinhardt was no longer a judge at the time when the en banc decision in this case was filed, the Ninth Circuit erred in counting him as a member of the majority. That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death. But federal judges are appointed for life, not for eternity.

We therefore grant the petition for certiorari, vacate the judgment of the United States Court of Appeals for the Ninth Circuit, and remand the case for further proceed­ings consistent with this opinion.


Be Careful About Your Guilty Pleas

posted by Judge_Burke @ 19:35 PM
March 25, 2019

Myeonki Kim (Korean National Police University) has posted Conviction Beyond a Reasonable Suspicion? The Need for Strengthening the Factual Basis Requirement in Guilty Pleas (Concordia Law Review 3(1), 2018) on SSRN. Here is the abstract:

Does the court, before accepting a guilty plea, check the accuracy of the plea agreement in any significant way? This article addresses the issues on judges being unconcerned or the inconsistent practice of guiding the stages of guilty plea. The article further suggests that the judge should carefully review its factual basis to avoid a wrongful guilty plea. Although Rule 11(b) of the Federal Rule of Criminal Procedure requires the judges to check the factual basis of the guilty plea, the rule is not paid much attention to legal professionals. Setting the adversarial culture aside, the rule itself has a structural problem not to be enforced properly during a plea colloquy. Instead of revising the rule, this article proposes a newer interpretation to induce judges more responsible to confirm the factual basis. This could be a practical solution 1) to filter out an inaccurate pleading guilty, 2) to increase the accountability of the prosecution in guilty plea, and 3) to help the defendant make more informed plea decisions.


A Solution For Helping Those Without Lawyers?

posted by Judge_Burke @ 21:11 PM
March 20, 2019

The Minnesota Supreme Court has established an implementation committee for a new pilot that will permit legal paraprofessionals to provide legal advice, and in some cases, represent a client in court when under the supervision of a Minnesota attorney. The Legal Paraprofessional Pilot Project is intended to increase access to civil legal representation in case types where one or both parties typically appear without legal representation. This pilot is an outgrowth of the recommendations made by the 2017 Minnesota State Bar Association’s Alternative Legal Models Task Force.

The project will be co-chaired by Minnesota Supreme Court Associate Justice Paul C. Thissen and Minnesota Court of Appeals Judge John R. Rodenberg. The implementation committee of the pilot includes legal experts from throughout Minnesota and will produce recommendations for implementing and evaluating the pilot by February 28, 2020. Other states have studied this issue and implemented rules to allow for limited legal representation by paraprofessionals.

The scope of the Legal Paraprofessional Pilot Project will be limited to one of three areas of unmet need in civil law—housing disputes, family law, and creditor-debtor disputes. These three civil case types have a high frequency of asymmetrical representation or low overall representation. Minnesota courts data shows that in creditor-debtor cases 96 percent of creditors have representation and seven percent of debtors have representation. Housing disputes see similarly unbalanced but also low rates of representation with 51 percent of landlords represented and three percent of tenants represented. In family law cases, the majority of parties are unrepresented.

“Our data shows unmet need for legal representation in our courts,” said Minnesota Supreme Court Chief Justice Lorie S. Gildea. “The Legal Paraprofessionals Pilot Project is an opportunity to help lower income Minnesotans get the legal representation they may need, but often cannot afford, in civil matters. I’m pleased Justice Thissen and Judge Rodenberg have agreed to lead the committee to study this pilot’s implementation.”

See Minnesota Supreme Court Order ADM19-8002 for further information.


Who Cares What The Law Is In Delaware…….Maybe We Can Learn About It

posted by Judge_Burke @ 21:11 PM
March 19, 2019

Like its federal counterpart, Delaware Rule of Evidence 106 provides that

If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time.

There’s a split among states as to whether this “rule of completeness” is simply a rule of timing or also a rule of admissibility. In other words, does it merely regulate when otherwise admissible evidence can be admitted or can it be used to transform otherwise inadmissible evidence into admissible evidence.

As the recent opinion of the Supreme Court of Delaware in Thompson v. State, 2019 WL 845674 (De. 2019), makes clear, Delaware’s rule of completeness is a rule of admissibility.

In Thompson, Aaron Thompson was charged with murder and related crimes, and Joshua Bey testified against him as a witness for the prosecution. Thereafter,

[o]n cross-examination, Thompson confronted Bey with several statements from his prior statements to the police that were inconsistent with his testimony at trial. A substantial portion of Bey’s cross-examination involved Thompson’s counsel confronting Bey with several statements he made in the August 14 proffer that were inconsistent with his trial testimony. He also questioned Bey about two discrete points in the September 5 statement that were inconsistent with his trial testimony.

Subsequently, the prosecution successfully argued that the entirety of Bey’s September 5th statement was admissible as a prior consistent statement under Delaware Rule of Evidence 801(d)(1)(B).

After he was convicted, Thompson appealed, claiming that the September 5th statement was not admissible as a prior consistent statement. The Supreme Court of Delaware rejected this argument, concluding that

Where, as here, the cross-examiner’s goal is to impeach the credibility of the testifying witness by arguing that the witness’s whole story is made up and does this by bringing up isolated examples of inconsistencies with a prior statement that are insignificant to the whole story, it is appropriate under Rule 106 for the jury to hear the entire prior statement to properly assess the witness’s credibility. Thompson’s line of attack was that since Bey could not keep his story straight (or consistent), he must have made the whole thing up. The recorded statement, however, was largely consistent with Bey’s trial testimony. Therefore, playing the entire statement countered Thompson’s argument that Bey was making everything up.

Finally, the court concluded that ”[s]ince we find that Bey’s September 5 statement was admissible under Rule 106, we need not consider its admissibility under Rule 801(d)(1)(B).”

Therefore, Delaware Rule of Evidence 106 clearly allows for the admissibility of evidence that is not admissible under any other rule of evidence.


Collateral Consequences Resource Center Study

posted by Judge_Burke @ 20:58 PM
March 18, 2019

CCRC is pleased to announce that we are undertaking a major study of the public availability and use of non-conviction records – including arrests that are never charged, charges that are dismissed, deferred dispositions, and acquittals.   Law enforcement agencies and courts frequently make these records available to the public through background checks, and allow their widespread dissemination on the internet.  This can lead to significant discrimination against people who have not been judged guilty of any wrong-doing, and result unfairly in barriers to employment, housing, education, and many other opportunities.  While almost every U.S. jurisdiction makes some provision for limiting public access to non-conviction records through mechanisms like sealing or expungement, such relief provisions vary widely in availability and effect, and are often hard to take advantage of without a lawyer.  What’s more, arrest records may remain accessible on the internet long after official files have been made confidential or even destroyed.  While CCRC’s Restoration of Rights Project now includes state-by-state information on how non-conviction records may be sealed or expunged, our new project will examine applicable laws more closely.

The first phase of this project, which is nearing completion, will produce a detailed inventory of the laws in each U.S. jurisdiction for limiting public access to arrests and/or judicial proceedings that do not result in conviction.  Among other things, this inventory will examine eligibility criteria, procedures (including any filing fees), and scope of relief.  We will also note where state law or court rulings permit sealing of dismissed charges where one or more charges in a case do result in conviction.  In a second phase of this project, we will consult with policy experts to conduct a nationwide analysis, examining specific issues across all jurisdictions, identifying patterns and gaps in existing policies.  The goal of a third phase will be to produce model legislation.

To mark the launch of our project on non-conviction records, we are pleased to publish the following op-ed, prepared for CCRC by Professors Jordan M. Hyatt and Sarah E. Lageson, which calls on legislators, law enforcement, and scholars to address the damage caused by bulk publication on the internet of pre-conviction information such as booking information and mugshots. 

It’s Time to Address the Damage of a ‘Criminal’ Digital Reputation

By Jordan M. Hyatt and Sarah E. Lageson  

Kill this secret arrest bill,” advocated a recent editorial in an upstate New York newspaper.  “Mugshot proposal pits privacy versus the right to know,” claimed another. These articles and op-eds were in clear opposition to NY Governor Andrew Cuomo’s recent proposal to halt the routine release of criminal mug shots unless there is a compelling law enforcement reason to do so. In his 2020 executive budget, the governor overtly recommends broad limitations on the unregulated release of potentially damaging pictures and information gathered during the arrest and pre-conviction processes.

The rationale for ending bulk disclosure of criminal record data lies in the harms presented by relatively unfettered access to all forms of criminal “records” on the internet. The current levels of availability have led to massive extortion and blackmail schemes, and leave mugshot subjects with enduring “digital punishment.” In Cuomo’s view, the only way to prevent such abuses of criminal justice data is to prevent the release in the first place. If his measure gains support, the public release of booking information and mugshots would no longer be permitted in New York, as their distribution would be considered “an unwarranted invasion of personal privacy.”  Many advocates agree that this reform would directly benefit individuals currently impacted and stigmatized by these policies.

New York is not the first state to grapple with the question of mugshots and arrest records. Several states, including California and Pennsylvania, have taken affirmative action against the release of mugshots through criminal charges and class action lawsuits. Dozens of states have passed laws banning mugshot extortion schemes, which monetize these harms by charging takedown fees to people who request that their photo be removed.

Limiting public access to mugshots, arrest records, and other pre-conviction records means recognizing that those records are part of the sources of collateral consequences. A criminal digital reputation can fuel stigmatization and negatively impact individuals for much longer than they ever spent behind bars — especially if charges were later dismissed or an arrest was expunged or sealed. Having a universally accessible criminal record – even for an arrest – also means being permanently labeled on the internet as an “offender,” presenting a host of collateral consequences. Research has established that opportunities for employment, housing and governmental services are sharply curtailed, social and familial relationships are strained, and reputations are often irreparably damaged.  These conclusions have been drawn by stakeholders across the ideological spectrum, from the ACLU to the Heritage Foundation.

For scholars, it might be time to consider the ways that digital access has expanded the scope of the traditionally recognized collateral consequences. Today, criminal records are much more than the official court file. A shadowy industry has worked to expand this definition. These images and records, frequently indexed by search engines, are more visible, harder to correct and more likely to trigger collateral consequences than any court record. The accompanying information is often incomplete or inaccurate. Not only does this line the pockets of the website’s owners, it disproportionately impacts the poorest citizens.

While many reforms are progressive, they are not without precedent.  There is currently a legal justification for making some, but not all, criminal history data publicly available for reasons of public safety, including through sex offender registries.  These are the reasoned actions of the state and an elected government.  But, in this digital world, meaningful rehabilitation requires a more nuanced approach – one that prevents the damage inflicted from the publication of a dismissed charge and that protects people’s ability to move on from an outdated conviction.  Any solution must protect arrestees from extortion while preserving law enforcement’s ability to do their job.

Legislators and law enforcement must take action at the federal, state and local levels.  And as Governor Cuomo has suggested, the conversation must begin by openly reconsidering the scope of publicly available mugshots and arrest data.  Authorities should start treating these records as truly sensitive information and consider if these data should be released and, if they are, what usages are acceptable.

At a minimum, the rights of potentially-innocent arrestees should be protected by limiting access to booking photos at least until after a preliminary hearing in front of a judge.  Systems must be put in place to ensure that the criminal records that are released are accurate and complete.  The industry of mugshot extortion must be legislated out of existence.

Progressive statutory and enforcement reform may be necessary to facilitate this change. Failing to check the usage of illicit mugshots for fiscal gain undermines confidence in law enforcement, the courts and ongoing efforts to undo the harms of a criminal justice system with a documented history of inequity and disparate treatment.

Jordan M. Hyatt is an Assistant Professor in the Department of Criminology and Justice Studies, Drexel University (Philadelphia, PA).

Sarah E. Lageson is an Assistant Professor in the School of Criminal Justice, Rutgers University (Newark, NJ).



Bail Reform In New York

posted by Judge_Burke @ 21:16 PM
March 15, 2019

Bail reform in New York hasn’t waited for legislative changes. The percentage of cases in which bail is required in the city has dropped in half over the past three decades. At the same time the rate at which defendants are released without having to post cash bail has increased by half, a new study reveals. The changes largely reflect new attitudes among judges, defense attorneys and prosecutors. All this before legislators vote on a measure that would eliminate cash bail in New York. TMP’s Eli Hager has our story.


How Should We Think About Bail?

posted by Judge_Burke @ 14:09 PM
March 14, 2019

Jordan Gross (Alexander Blewett III School of Law at the University of Montana) has posted Devil Take the Hindmost – Reform Considerations for States with a Constitutional Right to Bail (Akron Law Review, Forthcoming) on SSRN. Here is the abstract:

There is no right to bail under the U.S. Constitution. This means the question of who is bailable in state court is left entirely to state law, and the question of who is bailable in federal court is governed entirely by statute. Most original state constitutions guaranteed that “all persons shall be bailable by sufficient sureties,” except those charged with a narrow category of serious offenses (typically capital crimes). At the Founding, federal statutory law gave federal defendants similar rights. These early authorities reflected a national consensus on several points: the sole justification for bail is to secure a defendant’s presence at future court proceedings; all non-capital defendants should be released pending trial upon providing adequate assurances that they will return for trial; and some capital defendants can be detained pretrial because the prospect of losing one’s life if found guilty is such a powerful incentive to flee that the state’s interest in securing the defendant’s trial presence outweighs his interest in pretrial liberty. This traditional right to bail is categorical – if an accused is charged with a bailable offense, the trial court must set bail, and it must release the accused if he, or someone on his behalf, posts bail.

The trial court can impose conditions of release, including requiring “sufficient sureties.” But it cannot detain non-capital defendants without bail for any reason other than a failure to post bail. It cannot, for example, detain a defendant to prevent him from fleeing justice or to protect others in the community.

Under early English law, from which American bail law derives, bail was a mechanism for transferring custody of an accused to a third party – a surety – who promised to produce him for trial. The surety’s promise could be unsecured – backed by the surety’s word alone, or it could be secured by a pledge of money or property subject to forfeiture if the accused was not produced for trial. Historically, the surety was a person with a social connection to the accused, such as a relative or employer. In the United States, one of only two countries in which it is legal to collect a fee for securing a criminal bail bond, a surety can also be a commercial entity. Commercial, for-profit bail bonding is authorized in most states. In most traditional right to bail states that permit commercial bail bonding, secured money bail is a mainstay of bail administration. The commercial bail industry is loosely-regulated. This has allowed predatory and unscrupulous bail bonding practices to flourish unchecked in many traditional bail jurisdictions.

The traditional right to bail is anchored to the ideal that most defendants should be at liberty pending trial. The routine use of secured money bail as a condition of release in modern U.S. bail administration, however, has resulted in the routine pretrial detention of millions of Americans each year who cannot afford bail. These defendants are disproportionately non-white, and most are accused of non-violent misdemeanor offenses. Defendants who spend time in jail pretrial pay a steep price – they may lose housing, employment, and other opportunities; their ability to assist in their defense is hampered, and they are more likely to plead guilty and be convicted at trial. Those who post bail may end up in debt to a bondsman.

Congress passed the Bail Reform Act of 1966 to curb wealth-based pretrial detention practices in federal court. The 1966 Act made money bail a release condition of last resort in federal court and mandated that no federal defendant could be detained based on an inability to post money bail. These changes addressed concerns about economic inequities in federal bail practice, but created public safety concerns. Traditional, money-based bail administration does not permit a court to detain a bailable defendant pretrial, even if he poses a risk to the community. But as long as money bail is in the mix, courts can incapacitate a dangerous, but bailable, defendant by setting bail in an amount it hopes he cannot pay. Setting bail in an unpayable amount is an unauthorized, yet tolerated, practice in jurisdictions whose laws do not permit pretrial detention of non-capital defendants without bail. When Congress sidelined money bail in federal court that made it harder to use bail to detain dangerous defendants pretrial. To remedy this, Congress amended the Bail Reform Act in 1984 to authorize preventative pretrial detention in federal court – that is, detention without bail to prevent the defendant’s flight or to protect the public. Most states have also abandoned the traditional right to bail and embraced risk-based pretrial release and detention practices. Like the federal court, most states now permit preventative pretrial detention without bail for some non-capital defendants and treat money bail as a disfavored condition of release. Today, twenty-two states, fewer than half, continue to recognize an absolute constitutional right to bailability by sufficient sureties for non-capital defendants.

The devastating effects of money bail on poor defendants and their communities, with no corresponding public safety benefit, are well-documented. Bail reform has been a topic of discussion in the U.S. since at least the 1960s, and it has received an extraordinary amount of media and scholarly attention in the last several years. The focus then and now has been primarily on the undisputed negative aspects of money-based bail administration. Relatively little attention is given to understanding why a state may continue to embrace traditional bail administration practices notwithstanding the many downsides of money bail. A great deal of the complexity surrounding the law and history of bail is often lost in the process. To fill that gap, this Article identifies practical, legal, and philosophical reasons that may prevent or discourage states from abrogating the traditional right to bail in favor of risk-based bail administration.

The current bail reform narrative frames bail administration as a binary choice between money bail and risk-based assessment. This Article posits that this is a false dichotomy and that right to bail states can address some of the problems caused by money-based bail administration without abandoning the traditional right to bail entirely. Criticisms of money-based bail administration have not changed much since the 1960s, but the legal and political landscape has. This Article cautions that right to bail jurisdictions that do not adapt to this new climate may end up on the wrong side of a rapidly evolving equal protection jurisprudence. At the same time, states that abandon the traditional right to bail face a different set of risks and trade-offs that need to be considered. Whether to pursue bail reform, ultimately, is a choice for the electorates in the remaining right to bail states, and that requires a discussion about the value of pretrial liberty, concerns for public safety, and how much power courts should have to detain accused persons pretrial based on a prediction about future behavior. In the interim, legislatures in right to bail states have a responsibility to ameliorate some of the hardships money-bail causes poor defendants and rein in the excesses of commercial bail bonding industry.


Stop & Frisk In A Conceal And Carry World

posted by Judge_Burke @ 21:07 PM
March 13, 2019

Stop and Frisk in a Concealed Carry World by Shawn E. Fields, 93 Wash. L. Rev. 1675 (December 2018).

This article considers the tension between the “conceal and carry” legislation currently in place in all states, and investigative stop-and-frisk under Terry v. Ohio, which permits frisks based on an officer’s investigation of possible gun possession.  The author proposes community policing alternatives as a solution to respect the rights of permitted carriers in marginalized communities while also protecting officers.


The Opioid Crisis

posted by Judge_Burke @ 21:58 PM
March 12, 2019

New England creates a regional opioid initiative

The chief justices of the six New England states have launched the New England Regional Judicial Opioid Initiative (NE RJOI), the second regional group of its kind.
The establishment of the New England group, which includes Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island and Vermont, comes at a time when federal, state and local leaders have committed to work together to combat the opioid epidemic and to help others recognize the crucial role that the courts play to fight this crisis.

The first joint effort, the Appalachia/Midwest Regional Judicial Opioid Initiative, included Illinois, Indiana, Kentucky, Michigan, North Carolina, Ohio, Tennessee and West Virginia. It was established in 2017 – the same year the Conference of Chief Justices and the Conference of State Court Administrators established the National Judicial Opioid Task Force. The national task force, which NCSC staffs, was created to examine current efforts and find solutions to address the opioid epidemic.

Like the states in the first regional group, the New England states have experienced some of the highest opioid-related overdose death rates ranging from 36 deaths per 100,000 in New Hampshire to 18 deaths per 100,000 in Vermont, according to the most recent figures available. The New England states also have some of the nation’s highest rates of opioid prescriptions per 100 people. The rates range from 60 per 100 in Massachusetts to 70 per 100 in Maine.

In support of the NE RJOI, the U.S. Justice Department’s Bureau of Justice Assistance has awarded the group $1.5 million. The initiative intends to develop a multi-state approach to the opioid epidemic with a focus on the courts.

The project will allow states to share best practices, coordinate and standardize procedures, and communicate in a more targeted and unified way.


Bail Reform Seems To Work In Philadelphia

posted by Judge_Burke @ 20:59 PM
March 8, 2019

Aurelie Ouss and Megan T. Stevenson (University of Pennsylvania and George Mason University – Antonin Scalia Law School, Faculty) have posted Evaluating the Impacts of Eliminating Prosecutorial Requests for Cash Bail on SSRN. Here is the abstract:

Recent criminal justice reform efforts have focused on electing progressive prosecutors to implement change, such as the reduction of cash bail as a requirement for pretrial release. However, critics worry that removing cash bail will decrease account- ability and increase failure-to-appear in court. We test this by looking at the effects of the No-Cash-Bail reform policy initiated by Philadelphia’s recently elected District Attorney, Larry Krasner. Under this policy, the DA’s office stopped requesting cash bail for defendants charged with a large variety of different offenses, both misdemeanor and felony. This policy led to an immediate 23% increase (12 percentage points) in the fraction of eligible defendants released with no monetary or other conditions (ROR), and a 22% (5 percentage points) decrease in the fraction of defendants who spent at least one night in jail, but no detectable difference for longer jail stays. The main effect of this policy was therefore to reduce the use of collateral to incentivize court appearance. In spite of this large decrease in the fraction of defendants having monetary incentives to show up to court, we detect no change in failure-to-appear in court or in recidivism, suggesting that reductions in the use of monetary bail can be made without significant adverse consequences. These results also demonstrate the role of prosecutors in determining outcomes over which they have no direct authority, such as setting bail.