Archive for May, 2019

What To Do About Bail?

posted by Judge_Burke @ 20:25 PM
May 30, 2019

New Jersey and Maryland have made major changes in how their judges use bail. There was litigation in the federal court in Texas that ended up with an order quite critical of how some of the Texas state court judges employed money bail.  So is there a “bail revolution” going on? Kellen Funk (Columbia University – Law School) has posted The Present Crisis in American Bail (128 Yale Law Journal Forum 1098, 2019) on SSRN. Here is the abstract:

More than fifty years after a predicted coming federal courts crisis in bail, district courts have begun granting major systemic injunctions against money bail systems. This Essay surveys the constitutional theories and circuit splits that are forming through these litigations. The major point of controversy is the level of federal court scrutiny triggered by allegedly unconstitutional bail regimes, an inquiry complicated by ambiguous Supreme Court precedents on (1) postconviction fines, (2) preventive detention at the federal level, and (3) the adequacy of probable cause hearings. The Essay argues that the application of strict scrutiny makes the best sense of these precedents while also taking account of the troubled history of American bail, particularly during the Reconstruction Era from which the right to sue state officials in federal court for violations of constitutional rights emerged.


To Sniff Out Pot With Dogs In Colorado, Police Need Probable Cause First

posted by Judge_Burke @ 18:43 PM
May 29, 2019

Elise Schmlzer reports for the Denver Post on People v. McKnight, 2019 CO 36. Here is an excerpt from her article:

The Colorado Supreme Court greatly diminished the role of police dogs trained to detect marijuana with a ruling Monday that created another divide between how state and federal law enforcement can investigate pot.

In a 4-3 ruling, the Colorado Supreme Court ruled that, under the state constitution, a dog trained to alert to marijuana cannot be used before an officer establishes probable cause that a crime had been committed.

For decades, police dogs were trained to alert their handlers to the presence of pot. But since Coloradans voted in 2012 to legalize recreational possession of small amounts of the drug, the dogs’ sniff tests have been controversial because they can alert even if a person has a legal amount of marijuana.

Monday’s ruling effectively renders the dogs trained to detect pot useless in most situations, said Sam Kamin, a law professor at the University of Denver who studies marijuana law and policy. Previously, the dogs’ sniff tests were used to create probable cause for a search. Now, there has to be enough evidence to authorize a search before a marijuana-trained dog can be used, making the dogs’ sniff tests redundant.



Thinking About Collateral Consequences

posted by Judge_Burke @ 21:21 PM
May 28, 2019

There is an interesting new paper about collateral consequences written by Paul T. Crane on SSRN. Here is the abstract:

A curious relationship currently exists between collateral consequences and criminal procedures.  It is now widely accepted that collateral consequences are an integral component of the American criminal justice system.  Such consequences shape the contours of many criminal cases, influencing what charges are brought by the government, the content of plea negotiations, the sentences imposed by trial judges, and the impact of criminal convictions on defendants.  Yet, when it comes to the allocation of criminal procedures, collateral consequences continue to be treated as if they are external to the criminal justice process.  Specifically, a conviction’s collateral consequences, no matter how severe, are typically treated as irrelevant when determining whether a defendant is entitled to a particular procedural protection.

This Article examines that paradoxical relationship and, after identifying a previously overlooked reason for its existence, provides a framework for incorporating collateral consequences into criminal procedure.  Heavily influenced by concerns of practicality and feasibility, the proposed methodology establishes a theoretically coherent path forward that requires only modest adjustments to existing doctrines.  After setting forth the three-step framework, the Article applies its insights to the two most hallowed rights in our criminal justice system: the constitutional right to counsel and the constitutional right to a jury trial.



posted by Judge_Burke @ 2:13 AM
May 25, 2019

A Washington, D.C. judge ordered a man to stay out of the District of Columbia as a condition of his release from jail.  Rives Miller Grogan was arrested for climbing a tree near the Capitol as part of a protest during President Obama’s inauguration. Can you be banished from a state?

Probably not. Sixteen states have constitutional provisions prohibiting banishment, and appeals courts in many others have outlawed the practice. Although it remains on the books in a handful of states—the Tennessee Constitution, Article I, Section 8, permits exile, and Maryland’s Constitution, XXXIX, specifically prescribes banishment as a punishment for corruption—appeals courts usually overturn sentences of exile. There has been only one recent case of banishment from a state: In 2000, a Kentucky judge banished a domestic abuser from the state for one year. (The case never reached the state’s high court.) The District of Columbia has no constitution, and its statutes don’t mention banishment, so the legality of Grogan’s exile is unclear. Judges typically get wider discretion in prescribing conditions of bail than in sentencing, but there is a strong trend toward invalidating interstate banishment under any circumstances.

And now thanks to Judge Wayne Gorman we have insight into banishment from Canada. In R. v. Deering, 2019 NLCA 31, May 17, 2019, the accused was convicted of the offences of breach of probation and breach of recognizance.  He was sentenced to a period of imprisonment followed by a period of probation.  The probation order contained a condition prohibiting the accused from being present on “any part of the Burin Peninsula south of the Piper’s Hole River Bridge”.

The accused appealed from sentence, arguing that this condition was unreasonable.

The appeal was dismissed.

The Court of Appeal indicated that a banishment condition “must be justified in each individual circumstance…a banishment condition cannot be used simply to punish the offender in the abstract. Where, however, it is used to protect the victim from further interaction with the offender or to facilitate the offender’s rehabilitation, it can be justified if appropriate in scope, given the area and locality involved” (at paragraph 18).

The Court of Appeal concluded that the sentencing judge “did not err in imposing a no-go area on the appellant as a condition of his probation” (at paragraphs 22 and 23):

In this case, the appellant’s criminal history demonstrates an unwillingness or inability to abide by court orders in general and no-contact orders in particular. There is no reason to believe that another no-contact order, without more, would have any greater chance of being effective. The use of a no-go area in this case is justifiable as a potentially more effective alternative – indeed, the only realistic alternative – means of minimizing and hopefully eliminating contact between the appellant and the complainant. As such, it has potential of contributing to the protection of the community, something that has not been achieved by imposition of simple no-contact orders in the past. Furthermore, the separation of the appellant from the complainant in this way should have the incidental effect of reducing the potential for future breaches of the no-contact provision and may incidentally contribute to the appellant’s rehabilitation and reintegration into the community when the probation order expires. It will involve a “cooling off” period that may enable him to reflect on the futility of trying to maintain a one-sided relationship with someone who does not want to continue it.

A no-go order can thus be regarded as a reasonable condition that would contribute to protection of the community and the reintegration of the offender into the community. The appropriate nexus between the offender and these goals therefore exists, as required by s. 732.1(3)(h) of the Code and as explained in Shoker. It can equally be said there is a nexus between the offence and the contemplated banishment, as alluded to in Reeves. From the record and the way the judge approached the matter, it is evident that he thought the same way. It was therefore not inappropriate to employ the tool of imposing a no-go area on the appellant as a condition of his probation.


Repost from the Sentencing Law and Policy Blog, “Guest post on the Fourth Circuit’s reaction to district judge’s rejection of plea bargains”:

In prior posts here and here I noted the quite notable opinions by US District Judge Joseph Goodwin explaining why he was rejecting plea bargaining in fairly routine cases.  Professor Suja A. Thomas, Peer and Sarah Pedersen Professor of Law at the University of Illinois College of Law, who is a leading scholar on juries and has written the leading book on the topic, was kind enough to put together this guest post about the Fourth Circuit’s recent opinion in one of these cases:

By rejecting plea bargains, Judge Joseph Goodwin of the Southern District of West Virginia has been challenging the prevalent use of plea-bargaining in the federal courts.  Judge Goodwin began to do so in 2017 in United States v. Walker when he issued an opinion rejecting a plea bargain in a case involving heroin-dealing (discussed here).  He said he would continue to reject plea deals as long as the plea bargain wasn’t in the public’s interest.  True to his word he has rejected pleas in other cases including United States v. Stevenson and United States v. Wilmore.  Late last month in US v. Walker, No. 18-4110 (4th Cir. April 29, 2019), the Fourth Circuit issued its first opinion addressing Judge Goodwin’s rejection of pleas.

The facts of Walker are significant.  The government presented a deal for a plea to a single count of possession with intent to distribute heroin.  It recommended 24 to 30 months. The court rejected the plea deal and ultimately as a result of pleading guilty to three distribution counts plus a jury conviction on a gun count, the defendant received four times as much — 120 months in prison.

In Walker, Judge Goodwin described four considerations in whether a plea bargain agreement should be accepted: “(1) ‘the cultural context surrounding the subject criminal conduct’; (2) ‘the public’s interest in participating in the adjudication of the criminal conduct’; (3) the possibility of ‘community catharsis’ absent the transparency of a jury trial; and (4) whether, in light of the [presentence report], it appeared that the ‘motivation’ for the plea agreement was ‘to advance justice’ or to ‘expediently avoid trial.’” 922 F.3d 239, 245 (4th Cir. 2019).  In rejecting the plea bargain there, the judge discussed how West Virginia had been “deeply wounded by … heroin and opioid addiction,” explained the public’s significant interest in this issue, described the importance of the jury’s determination of this matter, and concluded that the plea agreement had been improperly motivated by convenience.  Id. at 245-46.

While the Fourth Circuit addressed Judge Goodwin’s rejection of plea bargaining, the opinion is disappointing.  In upholding his decision, it focused on only Judge Goodwin’s analysis of the defendant’s criminal history and violence.  And it suggested that Judge Goodwin’s broader considerations such as the cultural context of the offenses were irrelevant.  Similarly, in concurrence, Judge Niemeyer stated that the court would have abused its discretion if it had rejected plea bargaining based on the government’s frequent use for the reason of convenience. Id. at 254.

The Fourth Circuit missed an opportunity.  It could have addressed some of the problems tagged by Judge Goodwin — that constitutionally-enshrined juries decide few cases and that the courts accept plea bargaining as necessary for efficiency — despite no constitutional backing for this proposition.

With that said, I recognize that Judge Goodwin’s actions resulted in a black defendant being sent to prison for much more time than the prosecution wanted — continuing to contribute to the problem of mass incarceration.  Additionally, a jury had some role but did not decide all counts.  Though one can argue that the Judge’s action in rejecting plea bargains is far from a perfect solution, whether you agree with the Judge or not, he has taken a bold, very courageous step of questioning our continued reliance on the system of plea bargaining.

And I share some views with Judge Goodwin.  I value the role that the jury was to play in the criminal justice system under the Constitution.  Plea coercion, as I like call it, occurs in approximately 97% of federal cases.  Most of the time the defendant is given a false choice — receive a discount for pleading guilty or receive a penalty for going to trial.  The obvious result is the system that we have now.  No one takes a jury trial; the penalty is too great.  In a book and elsewhere, I have argued that this system is unconstitutional.  Historically a penalty was not attached to a jury trial.  A defendant received the same sentence if he pled guilty or if he was convicted before a jury.

The Harvard Law Review summarized and critiqued Judge Goodwin’s opinion in Walker. 131 Harv. L. Rev. 2073 (2018).  Although an interesting analysis including a discussion of the significant impact on the defendant, the authors missed the mark when they simply stated plea bargaining is “a systemic problem that cannot be convincingly addressed by the actions of a single judge.” Id. at 2078.  They did not recognize that systemic change often begins with a single person challenging the status quo.  The judge has already sparked national media coverage and other significant discussions about plea bargaining.

With that said, what will the government do in the future in Judge Goodwin’s courtroom?  It seems like the defendant and the government will get around Judge Goodwin’s rejection of the plea deal by privately agreeing in advance to the plea.  Hopefully, the needed attention to the problems with plea-bargaining will not end there


More Than You Wanted To Know About Marijuana

posted by Judge_Burke @ 20:08 PM
May 21, 2019

Joelle Anne Moreno (Florida International University (FIU) – College of Law) has posted Half-Baked: The Science and Politics of Legal Pot (Penn State Law Review, Vol. 123, 2019) on SSRN. Here is the abstract:

Weed, herb, grass, bud, ganja, Mary Jane, hash oil, sinsemilla, budder, and shatter. Marijuana – whether viewed as a medicine or intoxicant – is fast becoming a part of everyday life, with the CDC reporting 7,000 new users every day and the American market projected to grow to $20 billion by 2020. Based on early campaign rhetoric, by that same year the U.S. could have a pro-marijuana president.

Despite its growing acceptance and popularity, marijuana remains illegal under federal law. Like heroin, LSD, and ecstasy, marijuana is a DEA Schedule I drug reflecting a Congressional determination that marijuana is both overly addictive and medically useless.

So what is the truth about pot? The current massive pro-marijuana momentum and increased use, obscures the fact that we still know almost nothing about marijuana’s treatment and palliative potential. Marijuana’s main psychoactive chemical is THC; but it also contains over 500 other chemicals with unknown physiological and psychological effects that vary based on dosage and consumption method. Medical marijuana may be legal in 32 states and supported by 84% of Americans, but federal constraints shield marijuana from basic scientific inquiry. This means that lawmakers and voters are enthusiastically supporting greater access to a drug without demanding critical scientific data. For policymaking purposes, this data should include marijuana’s short and long-term brain effects, possible lung and cardiac implications, chemical interactions with alcohol and other drugs, addiction risks, pregnancy and breast-feeding concerns, and the effects of secondhand smoke.

This Article treats marijuana as a significant contemporary science and law problem. It focuses on the fundamental question of regulating a substance that has not been adequately researched. The Article examines the extant scientific data, deficiencies, and inconsistencies and explains why legislators should not rely on copycat laws governing alcohol or prescription narcotics. It also explores how marijuana’s hybrid federal (illegality)/state (legality) raises compelling theoretical and practical Constitutional questions of preemption, the anti-commandeering rule, and congressional spending power. Marijuana legalization has, thus far, been treated as a niche academic concern. This approach is short-sighted and narrowminded. Marijuana regulation implicates the reach of national drug policy, the depth of state sovereignty, and the shared obligation to ensure the health and safety of our citizenry.


From the Institute for the Advancement of the American Legal System | University of Denver:

Divorcing Together

IAALS Releases New Report on its Interdisciplinary
Out-of-Court Approach to Separation and Divorce

It is no secret that divorce poses significant problems for those who go through the legal process. Even for people who approach it with the intention of remaining amicable, the adversarial nature of the legal process can put them at odds with one another. And, the courts are not well-positioned to provide much-needed emotional and future-planning support to families as they navigate the process. Today, IAALS has released a new report, Divorcing Together: Report on an Interdisciplinary Out-of-Court Approach to Separation and Divorce, which details the evaluation of our out-of-court model aimed at addressing these challenges for families with children.

We began designing our out-of-court divorce model in 2012 when we assembled a team of experts and stakeholders in the areas of family law and mental health. Working closely with this team, we devised a comprehensive divorce process that offered a range of services provided completely outside of the courts. The model was designed to provide not only legal services—including court case management, mediation, legal drafting, and legal education—but also a host of counseling services, such as co-parent coaching, individual counseling, family therapy, support groups, and child counseling.
In 2013, IAALS debuted the model on the University of Denver campus where graduate student interns served as the primary service providers. In 2015, the Center moved out into the Denver community and shifted to licensed professionals as primary service providers. Ultimately, the Center was unable to find a sustainable business model and closed its doors in late 2017.

Even with the Center closed, the successes and lessons learned throughout its four years of operation are invaluable as we continue to refine innovative models for helping families, and IAALS’ evaluation report provides keys insights. Most notably, the data demonstrates that individual parents experienced significant improvements in levels of acrimony toward the other parent, shared decision-making skills, communication and conflict resolution skills, confidence in the co-parenting relationship, and levels of stress related to parenting. Further, parent feedback about the Center experience was overwhelmingly positive. As one parent put it:

“The focus on children and what is best for them that is advocated by [the Center] helped our entire family go through the process and has positioned us for a harmonious co-parenting situation moving forward.”
The IAALS out-of-court model represents a substantial step in revolutionizing the way families experience the separation and divorce process—and our data will be informative as new innovations continue to develop. As communities around the country establish similar resources, we can look forward to a day when all families who intend to work together through the divorce process can do so in a supportive, cooperative environment.


By Bert | May 14, 2019 | The Open File Blog:

Wildly inappropriate behavior from the office of the prosecutor in Delaware’s largest city generated fascinating discussion among the justices in a recent Delaware Supreme Court opinion. The decision concerns the court’s review of a lower court’s dismissal of Jacquez Robinson’s first-degree murder indictment on the basis of law enforcement misconduct. Specifically, New Castle County prosecutors and their investigators raided the defendant’s jail cell and took his confidential files and notes, which included trial strategy, without notifying the court or his lawyer. In a close call, the five justices of the state’s highest court split three-to-two, with the majority deciding to reverse the lower court’s ruling. Although they declined to dismiss the indictment, the majority reprimanded the prosecutors, disqualified them from further participation in the case, ordered the office to destroy all trial work-product, and required the office to notify the trial court of its opinion if another instance of this misconduct was found. The dissenting justices would have gone even further, finding that the State’s “guileful and inept” response to being caught showed that the problem of misconduct demonstrated by their handling of Mr. Robinson’s documents is not merely an isolated incident.



Suspending Driver’s Licenses For Non-payment Of Fines

posted by Judge_Burke @ 19:19 PM
May 9, 2019

Michigan, like so many other states, has fines that are at times quite steep. There are people who just don’t bother to pay fines, but there are others who simply can’t pay the fine.

From Howard Bashman’s How Appealing blog, “Judge: Stop unfairly suspending Michigan driver’s licenses”:

Back in December 2017, Niraj Warikoo of The Detroit Free Press had an article headlined “A federal judge has issued a preliminary injunction halting the suspension of driver’s licenses in Michigan for people too poor to pay off court debts from traffic tickets, a decision that could impact about 100,000 residents.” The majority on a divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit issued this decision reversing the district court’s preliminary injunction. Circuit Judge Bernice Bouie Donald once again ends her dissenting opinion with “I dissent!”



What Kind Of Breath Taking Device Does Your Jurisdiction Use?

posted by Judge_Burke @ 17:02 PM
May 8, 2019

Sometimes we take for granted that forensic science is reliable when it isn’t. And because we legitimately fear drunk driving, the volume of cases can lead judges to be a bit cynical about challenges to the local police methodology. Just because there is a challenge does not necessarily make it true. The device that has been approved  in New Jersey illustrates the challenges courts face.

Mark DenbeauxNathan W. KahlNicholas SnowRichard EschleMarissa LitwinKeith Oliver and Robert DiPisa (Seton Hall University, School of Law, Seton Hall University, Seton Hall University, Seton Hall Law School – Center for Policy & Research, Seton Hall University – Center for Policy & Research, Seton Hall University – Center for Policy & Research and Seton Hall University – Center for Policy & Research) have posted The Untestable Drunk Driving Test on SSRN. Here is the abstract:

The intersection of law and science has a long and tortuous history, but a new chapter is being written in New Jersey with the state’s use of the Alcotest 7110 MK III-C for prosecuting drunk driving traffic offenses. As the name implies, this is a device which purports to test levels of intoxication by measuring breath alcohol levels in order to determine blood alcohol concentration. The Alcotest is a proprietary device purchased by the State of New Jersey for use by law enforcement under a contract with the manufacturer that prohibits the State from subjecting the device to “reverse engineering” testing. Although the Alcotest was approved for use by the New Jersey Supreme Court after a proceeding that explored its reliability, serious scientific and legal questions remain, largely because of the manufacturer’s refusal to sell a device for independent testing or permit the State to provide its devices for such assessment. Given this limitation, any conclusions about the Alcotest are necessarily tentative. Nevertheless, as detailed in this Report, there are serious reasons to doubt the accuracy and reliability of the test, especially the manufacturer’s claims of the superiority of its product because, unlike other devices, the Alcotest employs two independent measures of breath alcohol. In reality, the two measures are highly interdependent. In addition, there are other reasons to question the validity of the test as an accurate measure of intoxication.
The Alcotest machine and the process by which it has been adopted raise the following novel issues:

• In New Jersey, the Alcotest device has been adopted to the exclusion of all other devices. The Alcotest is now the only breath alcohol analyzer of record in the state.

• The Alcotest device is now ‘immunized’ from challenge and from outside testing, and doubly so:

• By New Jersey’s contract with Draeger, which allows Draeger to prohibit any entity other than the state from purchasing the Alcotest, and

• By the decision in State v. Chun, which acknowledges Draeger’s intellectual property rights to the source code of the Alcotest, thus preventing any outside entity from determining how the machine works.

• Measurement devices like the Alcotest are inherently inexact, not because of oversights or poor design but because any measurement carries with it measurement errors. Sources of error for previous machines were reasonably well investigated, documented, and understood. The Alcotest, while new and theoretically better than previous designs, is also subject to measurement error, but because of the Alcotest’s immunity to challenge, those sources of error are currently not subject to investigation by scientists, let alone litigants.

The point — that a consequential and relatively ubiquitous scientific instrument is unavailable for scientific purposes, under any circumstances — is more than a theoretical issue.

The hallmark of the scientific process is testing and peer review. As matters now stand, it is impossible to test and review the Alcotest in the courts, and Dr. Snow’s experiences show that it is further exempted from testing and review in the scientific community.

This report investigates the process by which the Alcotest was adopted; the extent to which it is immune from testing; the reason that such immunization is dangerous in light of the science of breathalyzers in general and the Alcotest in particular; and, finally, the legal consequences of admission of evidence that cannot be tested either in general or in this particular case. Because science lies at the core of the legal issues surrounding the use of the Alcotest, Part Two of this report describes the science behind blood alcohol tests in general and the Alcotest in particular. Part Three considers the circumstances and the Special Master’s decision of State v. Chun. Finally, the report’s conclusion addresses the legal consequences of the aforementioned testing prohibitions upon the use of the device in litigation