The Atlantic on Plea Bargaining

posted by Judge_Burke @ 14:30 PM
May 5, 2017


Shondel Church was arrested in Kansas City, Missouri, last July, accused of stealing a generator and a tool box from his stepmother. He sat in Lafayette County Jail for six weeks before his first conversation with a public defender, Matthew Gass. Gass was reportedly hopeful that he could win the case at trial, but explained that the intensity of his workload meant he would need six months to prepare—six months during which Church would remain jailed. As a father of four and his family’s primary breadwinner, Church felt he couldn’t wait that long and instead pled guilty to a misdemeanor. He received two years of probation and a $2,600 bill for his stay in pretrial detention.

Ninety-seven percent of federal cases are settled the way Church’s was, by plea bargain. State-level data suggest similar numbers nationwide. Though access to a public trial is enshrined in the Sixth Amendment, taking a plea forecloses that possibility. “This constitutional right, for most, is a myth,” U.S. District Judge John Kane wrote in 2014—one voice among a chorus of jurists, advocates, and academics all calling for reform. Some want tweaks to the regulation and oversight of pleas; others urge more ambitious overhaul of the way trials are conducted, streamlining the process to make it accessible to greater numbers of people.

Plea bargains were almost unheard of prior to the Civil War. Only in its aftermath, as waves of displaced Americans and immigrants rolled into cities and crime rates climbed, did appellate courts start documenting exchanges that resemble the modern practice. The plea became a release valve for mounting caseloads. Appellate courts “all condemned it as shocking and terrible” at the time, said Albert Alschuler, a retired law professor who has studied plea bargains for five decades. The courts raised a range of objections to these early encounters, from the secretiveness of the process to the likeliness of coercing innocent defendants. Pleas, wrote the Wisconsin Supreme Court in 1877, are “hardly, if at all, distinguishable in principle from a direct sale of justice.”


Keep reading here.







Come To Cleveland!!!!

posted by Judge_Burke @ 14:34 PM
May 4, 2017

AJA is excited to announce that the information for the 2017 Annual Educational Conference in Cleveland is now available on the AJA website at  The printed registration brochure is in the mail to all members, but right now you can find that brochure, an online and printable registration form, link to the Renaissance Cleveland’s website and to their special reservations page for AJA under the above link (please note the August 15 cut-off date).  The conference will be September 10-15, and all members are welcome and encouraged to attend for some outstanding education sessions, wonderful opportunities to talk with colleagues from across the United States and Canada, and to enjoy the many, many attractions of the vibrant city of Cleveland.  The Planning Committee is working on some wonderful optional activities, perhaps including group tickets to a Cleveland Indians game and/or the Rock and Roll Hall of Fame, so watch your email for more information.  Don’t miss this terrific conference!

PLUS, the first 100 PAID registrants for the conference will receive a free 7″, 8-gig Amazon Fire Tablet with Alexa to use during the conference and to take home with you.  Payment MUST accompany your registration, either by credit card or check.


Racial Profiling In Canada

posted by Judge_Burke @ 15:00 PM
May 3, 2017

David M. Tanovich (University of Windsor – Faculty of Law) has posted Applying The Racial Profiling Correspondence Test (66(1) Criminal Law Quarterly, 2018, Forthcoming) on SSRN.

Here is the abstract:

In the landmark Canadian racial profiling case of R v Brown, an unanimous Ontario Court of Appeal firmly recognized that racial profiling is a reality that is “supported by significant social science research.” 

Brown established a correspondence test for proving racial profiling. This paper aims to set out, in some detail, how and when the correspondence test can be applied.

Part I sets out the test from Brown. Part II identifies the different manifestations of racial profiling. Part III examines the relevant indicators that can be used to meet the test. These indicators include context, pretext and lessons learned. Part III also summarizes the recent carding/street check data which reveals the widespread nature of the disproportionate policing of Black and other racialized individuals in a number of cities across Canada. 

It is suggested that this evidence requires a reconsideration of the argument made in Peart v Peel Regional Police Services that there should be a rebuttable presumption of racial profiling in litigation. Parts II and III are presented in a largely non-traditional format to enhance accessibility and appreciation of the nature and scope of the problem. The paper concludes with a discussion of the relevance of the impact of racial profiling in assessing whether to exclude evidence found in breach of the Charter even where there is no finding of racial profiling in the particular case. This is an important contribution to our exclusionary rule jurisprudence and should be relied on in any case involving a racialized or Aboriginal accused. Finally, an Appendix is included which documents twenty-seven (27) positive judicial and tribunal findings of racial profiling by police in Canada in the post-Charter era.


The Time Has Come: We Must Speak Up on Behalf of Judges

posted by Judge_Burke @ 15:00 PM
May 2, 2017


           The late Chief Justice William Rehnquist once said that criticism of judges and their decisions “is as old as our Republic” and can be a healthy part of the balance of power between the branches of government. Today, however, recent attacks on judges have not only become unhealthy but threaten to undermine the public’s understanding of the role of judges in a democratic society.

           In a democratic society, judges will inevitably make rulings that challenge the authority of the other two branches or that protect the disadvantaged and those without political power.

           Intemperate personal attacks on judges by political leaders are simply wrong. The political leaders of our country have an obligation to foster public understanding of the role of courts, even when they disagree with a court’s ruling.

           Judges have historically been reluctant to respond to unfair attacks. But as far back as Chief Justice John Marshall, there have been times when judges have seen the need to speak up. This is one of those times.

           The leaders of the American Judges Association will speak out in defense of judges who are unfairly attacked, and we encourage others to do so too. Unfair or unseemly attacks on individual judges are not merely an attack on that individual judge—they are an attack on the institution of the judiciary, an institution indispensable to our democracy.

Approved by the Board of Governors at its April 29, 2017 meeting in Arlington, Virginia.


Happy Law Day…It is May 1st!

posted by Judge_Burke @ 16:11 PM
May 1, 2017

In 1958, when President Dwight D. Eisenhower proclaimed May 1 to be Law Day USA, he stated, “In a very real sense, the world no longer has a choice between force and law. If civilization is to survive, it must choose the rule of law.”

Each year the American Bar Association designates a Law Day theme to highlight an issue that is important. Although we have different roles, each of us who work in the courts contributes to insuring our community has a fair and effective system of justice. Sometimes we deal with difficult people, those who are under stress or with seemingly intractable problems. We might not get it right every time – after all, we are human.

The theme for Law Day 2017 is the 14th Amendment. Since its adoption, the 14th Amendment has been a key to liberty and freedom for a lot of people, but in the end, it is a document used by people like us to make our nation a better place. What we do is important, so in a sense Law Day is a celebration of our contributions to democracy.   

About the 2017 Law Day Theme

The 14th Amendment: Transforming American Democracy

The 2017 theme provides the opportunity to explore the many ways that the Fourteenth Amendment has reshaped American law and society. Through its Citizenship, Due Process and Equal Protection clauses, this transformative amendment advanced the rights of all Americans. It also played a pivotal role in extending the reach of the Bill of Rights to the states. Ratified during Reconstruction a century and a half ago, the Fourteenth Amendment serves as the cornerstone of landmark civil rights legislation, the foundation for numerous federal court decisions protecting fundamental rights, and a source of inspiration for all those who advocate for equal justice under law.

Click here to learn more about the 14th Amendment through the Library of Congress.

Click here to listen to the audio news release.



Since the decision in Padilla, there has been a lot more discussion about collateral consequences. Some cynics say there are nearly 40,000, so no one can adequately have knowledge of them all. But, in medicine, doctors face thousands of alternatives about why the human body gets sick and the reaction is not, “Darn, it is just too complicated!”

Gabriel “Jack” Chin (University of California, Davis – School of Law) has posted Collateral Consequences of Criminal Conviction (Academy for Justice, A Report on Scholarship and Criminal Justice Reform (Erik Luna ed., 2017, Forthcoming)) on SSRN.

Here is the abstract:

For many people convicted of crime, the greatest effect will not be imprisonment, but being marked as a criminal and subjected to collateral consequences. Consequences can include loss of civil rights, public benefits, and ineligibility for employment, licenses, and permits. Often applicable for life, the United States, the 50 states, and their agencies and subdivisions impose collateral consequences based on convictions from any jurisdiction. Collateral consequences are so numerous and scattered as to be virtually uncountable. In recent years, the American Law Institute, ABA, and Uniform Law Commission all have proposed reforms.

Collateral consequences should be: (1) collected so that defendants, lawyers, judges and policymakers can know what they are; (2) incorporated into counseling, plea bargaining, sentencing and other aspects of the criminal process; (3) subject to relief so that individuals can pursue law-abiding lives, and regain equal status; and (4) limited to those that evidence shows reasonably promote public safety.


If you look at those courts that are plagued with court delay, one of the principle factors is discovery disputes. If you look among those courts at those that have an incidence of wrongful convictions, wrongfully withheld discovery is a principal factor. Reform is necessary. 

Darryl K. Brown (University of Virginia School of Law) has posted Discovery Reform in State Criminal Justice (Forthcoming in Academy for Justice: A Report on Scholarship and Criminal Justice Reform (Erik Luna ed., 2017)) on SSRN.

Here is the abstract:

Rules of pretrial evidence disclosure vary widely in state criminal justice systems. In all states discovery is more restricted than it is in civil litigation. In a substantial minority of states, it remains dramatically restricted. That is in part a relic of the common law tradition when it was assumed most cases would be resolved by trial. But trials are now rare; nearly all convictions are the result of a plea bargain. The pretrial stage is the only place in which adversarial process operates and in which parties can evaluate evidence. Most states have adopted broader discovery rules in light of this reality, because disclosure failures have led to wrongful convictions, and because experience show that risks related to certain disclosures are easily managed. The primary agenda for discovery reform in state criminal justice is to convince those states that still adhere to outdated disclosure policies to join the majority of their peers and require more evidence to be exchanged between prosecutors and defense attorneys prior to plea bargaining.


Body Cameras

posted by Judge_Burke @ 15:00 PM
April 21, 2017

For many courts this is not an issue. Defendant’s counsel gets the body camera footage routinely. But if this is not the practice in your jurisdiction . V. Noah Gimbel has posted Body Cameras and Criminal Discovery (Georgetown Law Journal, Vol. 104, No. 6, 2016) on SSRN.

Here is the abstract:

As police departments nationwide operate under increasing public scrutiny following numerous high-profile instances of excessive and often lethal force against unarmed African-Americans and Latinos, calls for greater accountability have been nearly unanimous in supporting the use of Body-Worn Cameras (BWCs) by police officers. On September 21, 2015, the Department of Justice announced awards totaling over $23 million to local police departments for the purpose of implementing BWC programs. Announcing the project, Attorney General Loretta Lynch emphasized the hope that BWCs would “enhance transparency, accountability, and credibility” among beleaguered police departments nationwide. But, in addition to recording the activities of the police, BWCs also record the conduct and statements of criminal defendants, victims, and witnesses of crimes. BWC footage has been widely discussed for its potential to hold police accountable for their actions, but it has not yet been subject to scholarly examination for its potential use as evidence in criminal proceedings. This Note fills that gap, focusing on the conflict between the government’s interest in maintaining exclusive control over BWC footage and the defendant’s entitlement to pretrial discovery under Rule 16 of the Federal Rules of Criminal Procedure and the Due Process Clause of the Fifth and Fourteenth Amendments. Although witness safety concerns may justify some limitations on defendants’ access to body-cam footage in exceptional cases, this Note argues that the discovery rules governing analogous pre-existing technologies militate in favor of broad pretrial disclosure of BWC footage.


Procedural Fairness for Courts & Judges

posted by Judge_Burke @ 19:07 PM
April 20, 2017

Judge Steve Leben sits on the Kansas Court of Appeals. He and I have co-authored a number of articles on procedural fairness and founded the Procedural Fairness web site. Steve posted this on the web site today and I thought I would pass it on:

New Book from CCI: To Be Fair

by Steve Leben

The Center for Court Innovation has published a new book with 27 interviews with leaders around the country in procedural justice. The book is called To Be Fair: Voices About Procedural Justice, hot off the presses and also posted on the web. The book has a foreword from Prof. Tom Tyler and CCI deputy director Emily LaGratta.

As part of the book’s launch, CCI is hosting a live-streamed panel discussion on Friday, April 21, 2017 (9:30-10:30 a.m. EDT). I’m pleased to be part of that discussion, which will also include:

- Barbara Marcille, Multnomah County (OR) Circuit Court

- Melba Pearson, American Civil Liberties Union of Florida

If you’d like to join us this Friday morning (9:30-10:30 a.m. EDT) for the procedural-justice panel discussion, Here’s the direct link. Emily LaGratta will be moderating.

Whether you join us or not, the book may be of interest. Those interviewed include judges, court administrators, prosecutors, defense attorneys, and judicial-performance evaluators.


Are Day Fines a Solution?

posted by Judge_Burke @ 14:45 PM
April 19, 2017

After Ferguson, there has been renewed interest in how courts approach fines. Ferguson is regrettably a short term moniker for courts that are oblivious to the harsh reality of fining poor people. Many judges are rethinking what is the right thing to do. Elena Kantorowicz-Reznichenko (Erasmus University Rotterdam) has posted Day Fines: Reviving the Idea and Reversing the (Costly) Punitive Trend (American Criminal Law Review, Forthcoming) on SSRN.

Here is the abstract:

Fines have numerous advantages as a criminal sanction. They impose minor costs on the society and compliance leads to an increase of the state revenue. Furthermore, fines have no criminogenic effect as prisons do. However, the potential of this sanction is not fully exploited due to income variation among offenders. Sanctions must impose an equal burden on offenders who commit similar crimes. Yet in practice, low fines are insufficiently punitive to deter and punish wealthy offenders. And high fines are unaffordable for low-income offenders. As a result, fines are imposed only for minor offenses. On the contrary, day-fines allow imposing an equal relative burden of punishment, while assuring the offender is capable of complying with the pecuniary sanction. This is possible due to the special structure of day-fines, which separates the decision on the severity of the crime and the financial state of the offender. Such structure enables expanding the categories of offenses that can be dealt with pecuniary sanctions. Day-fines can offer a partial solution for the American prison-overcrowding problem. Therefore, the aim of this article is twofold. First, to provide a comparative analysis of day-fines in Europe. This analysis includes an exhaustive depiction of all the day-fine models that are currently implemented in Europe. Second, this article examines for the first time some of the challenges in transplanting day-fines into the U.S. criminal justice system, i.e. the constitutional restriction on Excessive Fines and the suitability of this model of fines to the American ‘uniformity revolution in sentencing’.