Archive for December, 2019

News From Kansas

posted by Judge_Burke @ 21:50 PM
December 26, 2019

An inherent powers lawsuit that challenges the appropriateness of court funding has been described by some as the nuclear option of court funding.  Rarely is this tactic tried and now we have Kansas. By the Associated Press:

Six trial-court judges in Kansas have filed a lawsuit against the state Legislature in hopes of forcing it to increase funding for the court system.

The judges filed the lawsuit Friday directly with the Kansas Supreme Court. The lawsuit alleges that state lawmakers have chronically underfinanced the judicial branch.

The judges asked the state’s highest court to force legislators to consider funding “independent of unrelated political agendas.” The Supreme Court itself has already proposed an $18 million increase in the court system’s budget. Much of the proposed funds would go toward increasing pay for both judges and court staff.



I have written about this issue before but wanted to share with you my most recent commentary.  What is occurring in Minnesota is not peculiar to our state.  Fairness in the criminal justice system isn’t easy to achieve. I  reject the thought that the problem of racially profiled stops is simply a police problem. All of the leaders of the justice system have a responsibility to do better than we are currently.  Please feel free to share the commentary as well as sharing any thoughts with me about the piece.

Thanks & Happy Holidays,



Racial Disparities in Treatment Courts

posted by Judge_Burke @ 18:24 PM
December 23, 2019



Racial and Ethnic Disparities (RED) in policing practices,

arrest and conviction rates, sentencing norms, and incarceration

trends have continuously had a negative impact on racial and

ethnic minorities.1 Treatment courts, unfortunately, have also

experienced RED in outcomes (e.g. minorities graduating

programs at a lesser rate than Caucasians). To their credit, treatment

courts have taken a proactive, advocacy approach in

researching and eliminating the problem to assure equal access

and effective treatments for all participants. The first treatment

court was a drug court that began in 1989 in Miami-Dade

County, Florida. Since then, drug courts have been rigorously

evaluated, and in the past 30 years research has demonstrated

that drug courts are more effective than traditional criminal

justice interventions (e.g. probation) at reducing criminal

recidivism rates for individuals who have substance use disorders.

2 As a result of the success of drug courts, other treatment

court models were developed, such as mental health courts,

family dependency treatment courts, veterans treatment courts,

and DWI (driving while intoxicated) courts, to name a few.

Although research has continuously shown that treatment

courts are effective, there is an unfortunate trend in some

treatment courts where RED exist. These disparities are primarily

present in participants who have access to the programs,

completion rates, and criminal recidivism outcomes. It is

important to mention, however, that the majority of research

on RED is focused on adult drug courts, which is not surprising,

considering they are the most common type of treatment

court. The findings, however, from previous research and

recommendations to eliminate RED in outcomes may be

applicable to all types of treatment courts, as they operate under

the same, or similar, key components (e.g. frequent status hearings

with a judge, random and frequent drug testing,

court-ordered counseling, offering sanctions and incentives).

The presence of RED in treatment court outcomes is not a new

phenomenon. For the full study:


An Interesting Story From Oregon

posted by Judge_Burke @ 22:55 PM
December 20, 2019

The Oregon Supreme Court’s decision last month to restrict the scope of questions police officers can ask during traffic stops could reduce the racial disparities that have undermined community confidence in Portland’s police department. PORTLAND MERCURY


When Is Saying Something TOO Much Or Not Enough?

posted by Judge_Burke @ 0:00 AM
December 18, 2019

“Under fire Quebec Appeal Court won’t suspend contested secularism bill”

Monday, December 16, 2019 @ 1:27 PM | By Luis Millan

A divided Quebec Court of Appeal, grappling with a series of controversial complaints against its chief justice, has refused to stay sections of the province’s secularism bill even though it acknowledges that the controversial ban on religious symbols is causing irreparable harm to some people.

The decision comes on the heels of a series of complaints lodged against Court of Appeal Chief Justice Nicole Duval Hesler before the Canadian Judicial Council over bias she has allegedly demonstrated against the province’s secularism law.

“It is obvious that the ethics process is being exploited by people who are fully aware of the consequences,” said Emmanuelle Bernheim, a law professor at the Université de Québec à Montréal who co-wrote the book Applied Judicial Ethics. “The chances that the complaints will go anywhere are very limited. But the consequences, or potential consequences, go beyond the question of laicity. It seems to me that it brings into question the legitimacy of the courts in general. It’s very disturbing.”


Interviewing Children

posted by Judge_Burke @ 21:04 PM
December 13, 2019

Hayden HendersonNatalie Russo and Thomas D. Lyon (University of Southern California – USC Gould School of Law, University of Southern California – USC Gould School of Law and University of Southern California Gould School of Law) have posted Forensic Interviewers’ Difficulty with Invitations: Faux Invitations and Negative Recasting (Forthcoming, Child Maltreatment) on SSRN. Here is the abstract:

An ongoing challenge for forensic interviewers is to maximize their use of invitations, such as requests that the child “tell me more about” details mentioned by the child. Examining 434 interviews with 4- to 12-year-old children questioned about abuse, this study analyzed (1) faux invitations, in which interviewers prefaced questions with “tell me” but then asked a non-invitation, (2) negative recasts, in which interviewers started to ask an invitation but then recast the question as a wh- or option-posing question and (3) other aspects of questions that may relate to productivity independent of their status as invitations. About one fourth of “tell me” questions were faux invitations and over 80% of recasts were negative. The frequency of both faux invitations and negative recasts increased during the substantive phase of the interviews, and these were related to decreased productivity, increased non-responsiveness, and increased uncertainty. In contrast, use of exhaustive terms (e.g., “tell me everything”) and non-static questions (e.g., about actions) were related to increased productivity. The results suggest that training should teach interviewers when and how strategic use of invitations and other question-types can elicit specific types of forensically relevant information.


Risk Assessment In The Hands Of Humans

posted by Judge_Burke @ 22:17 PM
December 12, 2019

Megan T. Stevenson and Jennifer L. Doleac (George Mason University – Antonin Scalia Law School, Faculty and Texas A&M University – Department of Economics) have posted Algorithmic Risk Assessment in the Hands of Humans on SSRN. Here is the abstract:

We evaluate the impacts of adopting algorithmic predictions of future offending (risk assessments) as an aid to judicial discretion in felony sentencing. We find that judges’ decisions are influenced by the risk score, leading to longer sentences for defendants with higher scores and shorter sentences for those with lower scores. However, we find no robust evidence that this reshuffling led to a decline in recidivism, and, over time, judges appeared to use the risk scores less. Risk assessment’s failure to reduce recidivism is at least partially explained by judicial discretion in its use. Judges systematically grant leniency to young defendants, despite their high risk of reoffending. This is in line with a long standing practice of treating youth as a mitigator in sentencing, due to lower perceived culpability. Such a conflict in goals may have led prior studies to overestimate the extent to which judges make prediction errors. Since one of the most important inputs to the risk score is effectively off-limits, risk assessment’s expected benefits are curtailed. We find no evidence that risk assessment affected racial disparities statewide, although there was a relative increase in sentences for black defendants in courts that appeared to use risk assessment most. We conduct simulations to evaluate how race and age disparities would have changed if judges had fully complied with the sentencing recommendations associated with the algorithm. Racial disparities might have increased slightly, but the largest change would have been higher relative incarceration rates for defendants under the age of 23. In the context of contentious public discussions about algorithms, our results highlight the importance of thinking about how man and machine interact.


Oregon Supreme Court Issues Rule to Limit ICE Courthouse Arrests

posted by Judge_Burke @ 21:09 PM
December 9, 2019
Oregon Supreme Court Chief Justice Martha Walters issued a new rule prohibiting civil arrests in or around the state’s courthouses unless a judge has signed an arrest warrant.
“The rule was adopted following a request to prohibit U.S. Immigration and Customs Enforcement (ICE) agents from making arrests in courthouses acting only on their own administrative warrants,” according to the chief justice’s press release. However, ICE has pushed back against the new rule, stating, “Despite any attempts to prevent ICE officers from doing their jobs, ICE will continue to carry out its mission to uphold public safety and enforce immigration law, and consider carefully whether to refer those who obstruct our lawful enforcement efforts for criminal prosecution.”
“Oregon is the third state, after New York and New Jersey, to issue a statewide court rule,” according to Oregon Public Broadcasting. The state’s new rule also follows a series of lawsuits in New York and Massachusetts against ICE for their arrests in courthouses. Last year, the Brennan Center also worked with 75 former state and federal judges to send a letter to ICE’s acting director Ronald Vitiello, denouncing the agency’s courthouse enforcement activities.

Did You Miss The AJA Educational Conference In Chicago?

posted by Judge_Burke @ 22:49 PM
December 4, 2019

We are pleased to announce that the videos from the education sessions at the conference in Chicago in September are available to watch on AJA’s website at Just click on “Watch Education Sessions” at the top of the page and you can choose the session you wish to view.


What May A Police Officer Ask A Driver On A Routine Traffic Stop?

posted by Judge_Burke @ 22:12 PM
December 3, 2019

The Oregon Supreme Court has  banned police officers from asking random questions of drivers stopped in their vehicles. The questions, the justices ruled, must be “reasonably related” to the reason the cops stopped the motorist in the first place. The decision stems from the case of Mario Arreola-Botello, who was pulled over by a Beaverton Police officer in 2015 for failing to signal a turn. Arreola-Botello consented to a search of his car, leading officers to discover a package of methamphetamine on the floor.

Arreola-Botello’s attorney, Joshua Crowther, argued the search of his car was unconstitutional because it was spawned by questions that went outside the scope of what police should be allowed to ask during a routine traffic stop.

A trial court and the Oregon Court of Appeals had previously rejected the argument. Both courts cited precedent that officers could go off-topic during an “unavoidable lull” in the interaction, which usually occurs while the driver was busy searching for their license and registration.

The Oregon Supreme Court saw it differently.

“Put simply, an ‘unavoidable lull’ does not create an opportunity for an officer to ask unrelated questions, unless the officer can justify the inquiry on other grounds,” the decision states. OREGON PUBLIC BROADCASTING