The Mental Health of Judges

posted by Judge_Burke @ 15:35 PM
April 18, 2017

Years ago I had a conversation with a judicial colleague that went along these lines, “Jim you are either the best judge or the worst on our bench.” The conversation essentially went nowhere…and then a few weeks later Jim (not his real name) told me that he had sought professional help. The prescribed medication helped and there the story should have ended. But Jim felt an obligation to tell others about his medical condition, and regrettably the rumors or innuendo about “Crazy Jim” began.

Every judge has less than stellar days, but few get the “is he off his meds today?” treatment. And the story had a sad ending. Judges are people who are just as likely to suffer medical conditions as anyone else, but we live in an era where too often mental health is not viewed in the same way as a gall bladder attack or diabetes.

Recently, the New York Law Journal had an article on mental illness of judges and the challenges for those afflicted:

Eileen Travis, director of the New York City Bar Association’s Lawyer Assistance Program, said judges are wary of reporting that they are having mental health problems. “They’re afraid that if word gets out, that’s just going to be it. That’s going to be the end of their career,” she said.

All states have laws protecting the confidentiality of lawyers and judges who seek assistance, Travis said. New York’s law, Judiciary Law §499, also grants immunity from civil liability to those who work for lawyer assistance programs.

For judges—who make up a small percentage of those who seek help from her office—there may be pressure to keep “cool, calm and collected,” Travis said, and a view that, as the ultimate problem-solvers in many cases, they need to maintain a veneer of being problem-free themselves.

“Even though, behind the scenes, they may be struggling with things that we all struggle with,” she said.

Austin attorney Seana Willing, the former head of the Texas State Commission on Judicial Conduct who often met with judges who wanted to discuss ethical dilemmas, said jurists are extremely reluctant to discuss mental health problems.

“That judge may have to stand for re-election,” she said. “Some may have health insurance to cover it, and some may not. And a lot of family members circle the wagons in a way that might make it harder for the person to get help.”

In 2005, Willing had planned to sit down with Mack Kidd, a well-regarded Texas appellate court judge who had arranged the meeting on a Monday morning. She would never find out why Kidd wanted to meet. He took his own life the previous day.

“The odd thing was … I didn’t know how he died until his ceremony,” said Willing, who considered Kidd, a justice on Austin’s Third Court of Appeals, a friend. “Then I saw all of these people speak about him and it became apparent that he had taken his own life. That shocked me to the core.”

The American Bar Association has a national hotline for judges who are having mental health and addiction problems that is operated by the Texas Lawyers’ Assistance Program (TLAP)—a State Bar of Texas program that offers confidential help with lawyers, law students and judges.

But Bree Buchanan, director of TLAP, said judges rarely call.

“They are invited to make a confidential phone call and we’ll help to find them resources and another peer support judge in the community that has faced something similar,” Buchanan said. “And we get about five or six calls a year.”

Judges often feel alone in their jobs because they have to separate themselves from the legal community for ethical reasons when they take the bench, she said.

“The problems that judges face are similar to stressors that lawyers face but I think they are more acute. Their degree of isolation is greatly increased,” Buchanan said. “And they can’t show any weakness or vulnerability even more than a lawyer because they are charged with making life-or-death decisions in their community. These factors in particular, combined, make it almost impossible for judges to reach out for help.”

Buchanan noted that it is often hard for members of the public to pick up on warning signs when a judge suffers from severe depression. For example, an impaired judge’s work product often does not suffer until their mental illness begins to spiral out of control. Some judges may give away their mental health issues if they display a disheveled appearance in court or are often late or missing from their jobs, she said.

“And then the difficulty becomes, what can be done about it?” Buchanan said. “And who in the county is going to approach the judge? It becomes very difficult.”

Buchanan said she encourages any judge who may be suffering from depression, mental health issues or addiction problems to call the ABA hotline for help at 1-800-219-6474.

 

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From the Federal Criminal Appeals blog:

United States v. Perkins, — F.3d —, 2017 WL 957205 (9th Cir. Mar. 13, 2017): Agent’s omission of relevant information from warrant invalidated computer search

There’s an old story about a two-car race, orchestrated during the height of the Cold War, between a driver from the United States and a driver from the Soviet Union. The race is close, but the American driver narrowly wins. The next day’s headline in the state-run Soviet newspaper reads: “In historic race, Soviet driver finishes second, while American driver barely manages to finish second to last.” It’s all true, of course, but the omission of material information renders it rather misleading. Amusing enough, as a parable of state propaganda; less so as a template for drafting a search warrant affidavit.

Which brings us to Mr. Charles Perkins. Mr. Perkins was en route to the United States through a Canadian airport when Canadian law enforcement agents learned that he was a registered sex offender and decided to have a look at his laptop. They found two questionable images, and called in an officer with expertise in child exploitation crimes. The expert examined the images and wrote up a report explaining his conclusion that they did not meet the Canadian definition of child pornography. Mr. Perkins went on to the United States, while the Canadian expert’s report went to the U.S. Department of Homeland Security. An American DHS agent drafted an affidavit, based on the Canadian expert’s report, in support of an application for a warrant to search Mr. Perkins’ home computers. The agent relayed the basic facts from the Canadian expert’s report, but omitted mitigating portions of the Canadian officer’s descriptions of the images, failed to include the actual images, and failed to mention that the Canadian expert had determined that the images were not pornographic. Finding that these omissions were knowing and misleading, and that a properly-drafted affidavit would not support probable cause, the Ninth Circuit held that the evidence derived from the search warrant should have been suppressed, and vacated Mr. Perkins’ conviction. Judge Murguia dissented, arguing that the majority should have exhibited greater deference to the district court’s assessment of the agent’s omissions.

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Bail Reform

posted by Judge_Burke @ 14:30 PM
April 6, 2017

In many parts of the United States, there are attempts to reform the bail system. Recently, New Jersey amended the state constitution as part of a bail reform project. Similarly, Maryland made major changes.

Megan Stevenson and Sandra G. Mayson (University of Pennsylvania Law School and University of Pennsylvania Law School) have posted Bail Reform: New Directions for Pretrial Detention and Release (In Academy for Justice, A Report on Scholarship and Criminal Justice Reform (Erik Luna ed., 2017, Forthcoming)) on SSRN.

Here is the abstract: 

Our current pretrial system imposes high costs on both the people who are detained pretrial and the taxpayers who foot the bill. These costs have prompted a surge of bail reform around the country. Reformers seek to reduce pretrial detention rates, as well as racial and socioeconomic disparities in the pretrial system, while simultaneously improving appearance rates and reducing pretrial crime. The current state of pretrial practice suggests that there is ample room for improvement. Bail hearings are often cursory, with no defense counsel present. Money-bail practices lead to high rates of detention even among misdemeanor defendants and those who pose no serious risk of crime or flight. Infrequent evaluation means that the judges and magistrates who set bail have little information about how their bail-setting practices affect detention, appearance and crime rates. Practical and low-cost interventions, such as court reminder systems, are underutilized. To promote lasting reform, this chapter identifies pretrial strategies that are both within the state’s authority and supported by empirical research. These interventions should be designed with input from stakeholders, and carefully evaluated to ensure that the desired improvements are achieved.

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This is the Face of Domestic Abuse

posted by Judge_Burke @ 22:25 PM
April 5, 2017

In front of a Guilford County courthouse in North Carolina recently stood a man holding a poster with a hand-written message: “This is the face of domestic abuse.” It wasn’t a bizarre publicity stunt but a court-imposed public shaming. In another case, a ferry operator in Massachusetts was found guilty of polluting. On top of a stiff fine, the judge ordered the company to publish an advertisement in the Boston Herald reading:  ”Our company has discharged human waste directly into coastal Massachusetts waters.”

The 8th Amendment bans cruel and unusual punishment. Are these either one? Or can justice be fairly meted out in something other than years and months behind bars? In 2012, a Ohio judge gave a woman a choice of going to jail or spending two days standing on a street corner with a sign reading:  ”Only an idiot would drive on the sidewalk to avoid a school bus.” The woman chose to hold the sign.

Jessica Eaglin, of the Brennan Center for Justice, says that some judges may view public shaming as more forward-looking than retributive punishments. Forward-looking public shaming is more deterrence-based, says Eaglin, and can have an impact on an entire community instead of just one person. For low-level crimes in small towns, “that’s where the public shaming comes in,” Eaglin says. “It’s reflecting on your life, people are watching you, and that’s going to affect your behavior more than just paying a fine.

Not unexpectedly, not everyone agrees. “This kind of public shaming has no record of efficacy in turning someone away from crime,” Peggy McGarry, director of the Center on Sentencing and Corrections at the Vera Institute of Justice.

There are times when it is a fine line between being a creative judge and simply being a crazy judge. So…what do you think about shaming as a form of punishment?

 

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More on Plea Bargaining

posted by Judge_Burke @ 14:30 PM
April 4, 2017

Lisa Kern Griffin (Duke University School of Law) has posted State Incentives, Plea Bargaining Regulation, and the Failed Market for Indigent Defense (Law and Contemporary Problems, Vol. 80, 2017) on SSRN.

Here is the abstract:

This essay considers the intersection of two “markets” in the criminal justice system: plea bargaining and the provision of indigent defense. Plea bargaining has long been justified by free-market conceptions of private ordering and is subject to limited judicial oversight and regulation. The vast majority of defendants engaged in plea bargaining—several million each year—also rely on a publicly funded system for the provision of counsel. Staggering caseloads and minimal standards have produced an acute crisis in that system. Yet in three recent decisions, the Supreme Court has incrementally expanded the requirement of adequate assistance of counsel for defendants engaged in plea bargaining. The failure to advise a defendant entering a guilty plea of the collateral immigration consequences of conviction, exceedingly poor advice about rejecting a plea offer, and counsel’s failure to even convey the terms of a plea agreement all constitute breaches of a defendant’s Sixth Amendment right to representation. Although these decisions do not portend significant constitutional regulation of prosecutorial tactics or changes to the terms of plea agreements themselves, they have unexplored potential to affect the system of public defense.

By imposing even modest new requirements, the Court may have created a conflict between the efficiency of the plea bargaining market and the failing market for the representation of indigent defendants in the states. If certain information must be provided to clients in order for plea agreements to stand, then defense lawyers need enough resources to spend a few minutes more with those clients. Moving that lever—with the external force of court-imposed baselines for plea advice—could alter the state’s incentives. If the Court’s recent decisions even slightly expand the amount of time counsel must devote to defendants to ensure that pleas will be upheld, then the resources allocated to indigent defense might increase as well. 

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From the Motley Fool:

Wal-Mart has taken the law into its own hands. No, the company has not started its own jail, and any employee who wears a cape and fights crime must still do so on their own time. Instead, the retail chain has taken a new approach to fighting shoplifting that requires less involvement from the police. The retailer has been using a “restorative justice” program in 1,500 of its stores, according to The Gainesville Sun. That’s a program where people deemed low-risk, first-time offenders are given the choice of paying to take an anti-shoplifting course rather than facing arrest and prosecution.

The effort is in its early days, but the results have been good so far. The company has seen a 35% reduction in calls to law enforcement nationwide since restorative justice programs were first implemented, Wal-Mart spokesman Ragan Dickens told The Sun in an email.

“No retailer is immune to the challenge of crime. We recognize the importance of this issue at the highest levels of the company, and we are investing in people and technology to support our stores,” he wrote, noting that police are not being cut out of the loop.

Alleged shoplifters who get the chance to participate in the course must pay a fee to take it. The company does not disclose what it charges, but the paper noted that “the rate of repeat theft is low among those who have gone through the program.” If that proves to be true over a national rollout for the long run, then the company could save some serious money.

 

Keep reading.

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Can Algorithms Improve Justice…or Make it Worse?

posted by Judge_Burke @ 14:30 PM
March 31, 2017

When it Comes to Justice, Algorithms are Far From Infallible

by Erika Posey

 

Early on in Tuesday’s confirmation hearing, Neil Gorsuch suggested that the judiciary may be in danger of automation. When asked how political ideology can affect judicial decision-making, Judge Gorsuch joked that “they haven’t yet replaced judges with algorithms, though I think Ebay is trying, and maybe successfully.” The joke fell flat, but Judge Gorsuch isn’t completely wrong – though Ebay doesn’t seem to have anything to do with it.

Algorithms already play a role in courtrooms across the nation. “Risk assessment” software is used to predict whether or not an offender is likely to commit crimes in the future. The software uses personal characteristics like age, sex, socioeconomics, and family background to generate a risk score that can influence decisions about bail, pre-trial release, sentencing, and probation. The information fed into the system is pulled from either defendant surveys or criminal records.

Algorithms also help determine who ends up in the courtroom in the first place. Police are investing in “predictive policing” technology — powerful software that uses data on past crime to forecast where, when, and what crimes might occur. Police use the predictions to make deployment decisions. Some software even claims to predict who may be involved in a future crime. A pilot program in Chicago used software to identify roughly 400 people likely at high risk of being involved in violent crime in the next year. Law enforcement notified the individuals and followed up with them in an attempt to cut the city’s crime rate. Facial recognition algorithms are already used with surveillance footage, and emerging technology will allow real-time facial recognition with police body cameras.

Proponents of the tools laud the software’s potential to cut costs, drive down prison populations, and reduce bias in the criminal justice system. The expensive and prejudicial outcomes of our human-driven criminal justice system are well documented. As Judge Gorsuch lamented, “I’m not here to tell you I’m perfect. I’m a human being, not an algorithm.”

Unfortunately, the algorithms aren’t perfect either. A ProPublica analysis of a widely-used risk assessment algorithm found that only 20% of people the software predicted would commit violent crimes went on to do so in the two years after the assessment was conducted. When all crimes – including misdemeanors – were taken into account, the algorithm was only slightly more accurate than a coin flip in predicting recidivism rates. Worse still, it was nearly twice as likely to mislabel black defendants as high risk than white defendants.

 

For the full article, go here.

 

 

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Thinking About Civil Forfeiture

posted by Judge_Burke @ 16:53 PM
March 30, 2017

Very few AJA members are in the federal court system, but virtually all states have some form of civil forfeiture process. Two recent events suggest that the debate about civil forfeiture might be something that should get more attention.

Justice Clarence Thomas (not a notable liberal) issued a dissent raising concerns about the process, and the Justice Department’s Inspector General raised questions.

First, the Inspector General. The Washington Post reported:

The Drug Enforcement Administration takes billions of dollars in cash from people who are never charged with criminal activity, according to a report issued today by the Justice Department’s Inspector General.

Since 2007, the report found, the DEA has seized more than $4 billion in cash from people suspected of involvement with the drug trade. But 81 percent of those seizures, totaling $3.2 billion, were conducted administratively, meaning no civil or criminal charges were brought against the owners of the cash and no judicial review of the seizures ever occurred.

That total does not include the dollar value of other seized assets, like cars, homes, electronics and clothing.

These seizures are all legal under the controversial practice of civil asset forfeiture, which allows authorities to take cash, contraband and property from people suspected of crime. But the practice does not require authorities to obtain a criminal conviction, and it allows departments to keep seized cash and property for themselves unless individuals successfully challenge the forfeiture in court. Critics across the political spectrum say this creates a perverse profit motive, incentivizing police to seize goods not for the purpose of fighting crime, but for padding department budgets.

Law enforcement groups say the practice is a valuable tool for fighting criminal organizations, allowing them to seize drug profits and other ill-gotten goods. But the Inspector General’s report “raises serious concerns that maybe real purpose here is not to fight crime, but to seize and forfeit property,” said Darpana Sheth, senior attorney of the Institute for Justice, a civil liberties law form that has fought for forfeiture reform.

The Inspector General found that the Department of Justice “does not collect or evaluate the data necessary to know whether its seizures and forfeitures are effective, or the extent to which seizures present potential risks to civil liberties.”  

 

So, the question might be: does the state in which you sit keep data?

Then, there is Justice Thomas. He said:

This petition asks an important question: whether modern civil-forfeiture statutes can be squared with the Due Process Clause and our Nation’s history.

I

Early in the morning on April 1, 2013, a police officer stopped James Leonard for a traffic infraction along a known drug corridor. During a search of the vehicle, the officer found a safe in the trunk. Leonard and his passenger, Nicosa Kane, gave conflicting stories about the contents of the safe, with Leonard at one point indicating that it belonged to his mother, who is the petitioner here. The officer obtained a search warrant and discovered that the safe contained $201,100 and a bill of sale for a Pennsylvania home.

The State initiated civil forfeiture proceedings against the $201,100 on the ground that it was substantially connected to criminal activity, namely, narcotics sales. See Tex. Code Crim. Proc. Ann., Art. 59.01 (Vernon Cum. Supp. 2016). The trial court issued a forfeiture order, and petitioner appealed. Citing the suspicious circumstances of the stop and the contradictory stories provided by Leonard and Kane, the Court of Appeals affirmed the trial court’s conclusion that the government had shown by a preponderance of the evidence that the money was either the proceeds of a drug sale or intended to be used in such a sale. It also affirmed the trial court’s rejection of petitioner’s innocent-owner defense. Petitioner had asserted that the money was not related to a drug sale at all, but was instead from a home she had recently sold in Pennsylvania. The court deemed this testimony insufficient to establish that she was in fact an innocent owner.

Petitioner now challenges the constitutionality of the procedures used to adjudicate the seizure of her property. In particular, she argues that the Due Process Clause required the State to carry its burden by clear and convincing evidence rather than by a preponderance of the evidence.

II

Modern civil forfeiture statutes are plainly designed, at least in part, to punish the owner of property used for criminal purposes. See, e.g., Austin v. United States509 U. S. 602–619 (1993). When a state wishes to punish one of its citizens, it ordinarily proceeds against the defendant personally (known as “in personam”), and in many cases it must provide the defendant with full criminal procedural protections. Nevertheless, for reasons discussed below, this Court permits prosecutors seeking forfeiture to proceed against the property (known as “in rem”) and to do so civilly. See, e.g., United States v. James Daniel Good Real Property510 U. S. 43–57 (1993). In rem proceedings often enable the government to seize the property without any predeprivation judicial process and to obtain forfeiture of the property even when the owner is personally innocent (though some statutes, including the one here, provide for an innocent-owner defense). Civil proceedings often lack certain procedural protections that accompany criminal proceedings, such as the right to a jury trial and a heightened standard of proof.

Partially as a result of this distinct legal regime, civil forfeiture has in recent decades become widespread and highly profitable. See, e.g., Institute for Justice, D. Carpenter, L. Knepper, A. Erickson, & J. McDonald, Policing for Profit: The Abuse of Civil Asset Forfeiture 10 (2d ed. Nov. 2015) (Department of Justice Assets Forfeiture Fund took in $4.5 billion in 2014 alone), https://ij.org/wp-content/uploads/2015/11/policing-for-profit-2nd-edition.pdf (as last visited Feb. 27, 2017). And because the law enforcement entity responsible for seizing the property often keeps it, these entities have strong incentives to pursue forfeiture.Id., at 14 (noting that the Federal Government and many States permit 100 percent of forfeiture proceeds to flow directly to law enforcement); see also App. to Pet. for Cert. B–2 (directing that the money in this case be divided between the “Cleveland Police Department” and the “Liberty County District Attorney’s Office”).

This system—where police can seize property with limited judicial oversight and retain it for their own use—has led to egregious and well-chronicled abuses. According to one nationally publicized report, for example, police in the town of Tenaha, Texas, regularly seized the prop-erty of out-of-town drivers passing through and collaborated with the district attorney to coerce them into signing waivers of their property rights. Stillman, Taken, The New Yorker, Aug. 12 & 19, 2013, pp. 54–56. In one case, local officials threatened to file unsubstantiated felony charges against a Latino driver and his girlfriend and to place their children in foster care unless they signed a waiver. Id., at 49. In another, they seized a black plant worker’s car and all his property (including cash he planned to use for dental work), jailed him for a night, forced him to sign away his property, and then released him on the side of the road without a phone or money. Id., at 51. He was forced to walk to a Wal-Mart, where he borrowed a stranger’s phone to call his mother, who had to rent a car to pick him up. Ibid.

These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings. Id., at 53–54; Sallah, O’Harrow, & Rich, Stop and Seize, Washington Post, Sept. 7, 2014, pp. A1, A10. Perversely, these same groups are often the most burdened by forfeiture. They are more likely to use cash than alternative forms of payment, like credit cards, which may be less susceptible to forfeiture. And they are more likely to suffer in their daily lives while they litigate for the return of a critical item of property, such as a car or a home.

III

The Court has justified its unique constitutional treatment of civil forfeiture largely by reference to a discrete historical practice that existed at the time of the founding. See, e.g., Bennis v. Michigan516 U. S. 442–448 (1996). “ ‘English Law provided for statutory forfeitures of offending objects used in violation of the customs and revenue laws.’ ” Austinsupra, at 612 (quoting Calero-Toledo v. Pearson Yacht Leasing Co.416 U. S. 663, 682 (1974) ). This practice “took hold in the United States,” where the “First Congress passed laws subjecting ships and cargos involved in customs offenses to forfeiture.” 509 U. S., at 613. Other early statutes also provided for the forfeiture of pirate ships. United States v. Parcel of Rumson, N. J.Land507 U. S. 111, 119 (1993) (plurality opinion). These early statutes permitted the government to proceed in rem under the fiction that the thing itself, rather than the owner, was guilty of the crime. See Calero-Toledosupra, at 684–685; Act of Aug. 4, 1790, §67, 1Stat. 176–177. And, because these suits were in rem rather than in personam, they typically proceeded civilly rather than criminally. See United States v. La Vengeance, 3 Dall. 297, 301 (1796).

In the absence of this historical practice, the Constitution presumably would require the Court to align its distinct doctrine governing civil forfeiture with its doctrines governing other forms of punitive state action and property deprivation. See Bennissupra, at 454 (Thomas, J., concurring) (“One unaware of the history of forfeiture laws and 200 years of this Court’s precedent regarding such laws might well assume that such a scheme is lawless—a violation of due process”). I am skeptical that this historical practice is capable of sustaining, as a constitutional matter, the contours of modern practice, for two reasons.

First, historical forfeiture laws were narrower in most respects than modern ones. Cf. James Daniel Good, 510 U. S., at 85 (Thomas, J., concurring in part and dissenting in part) (noting that “ambitious modern statutes and prosecutorial practices have all but detached themselves from the ancient notion of civil forfeiture”). Most obviously, they were limited to a few specific subject matters, such as customs and piracy. Proceeding in rem in those cases was often justified by necessity, because the party responsible for the crime was frequently located overseas and thus beyond the personal jurisdiction of United States courts. See Herpel, Toward a Constitutional Kleptocracy: Civil Forfeiture in America, 96 Mich. L. Rev. 1910, 1918–1920 (1998); see also id., at 1925–1926 (arguing that founding-era precedents do not support the use of forfeiture against purely domestic offenses where the owner is plainly within the personal jurisdiction of both state and federal courts). These laws were also narrower with respect to the type of property they encompassed. For example, they typically covered only the instrumentalities of the crime (such as the vessel used to transport the goods), not the derivative proceeds of the crime (such as property purchased with money from the sale of the illegal goods). See Rumson, supra, at 121–122, 125 (plurality opinion) (Forfeiture of criminal proceeds is a modern innovation).

Second, it is unclear whether courts historically permitted forfeiture actions to proceed civilly in all respects. Some of this Court’s early cases suggested that forfeiture actions were in the nature of criminal proceedings. See, e.g., Boyd v. United States116 U. S. 616–634 (1886) (“We are . . . clearly of [the] opinion that proceedings instituted for the purpose of declaring the forfeiture of a man’s property by reason of offenses committed by him, though they may be civil in form, are in their nature criminal”); but see R. Waples, Treatise on Proceedings In Rem 29–30 (1882) (collecting contrary authorities). Whether forfeiture is characterized as civil or criminal carries important implications for a variety of procedural protections, including the right to a jury trial and the proper standard of proof. Indeed, as relevant in this case, there is some evidence that the government was historically required to prove its case beyond a reasonable doubt. See United States v. Brig Burdett, 9 Pet. 682, 690 (1835) (“The object of the prosecution against the Burdett is to enforce a forfeiture of the vessel, and all that pertains to it, for a violation of a revenue law. This prosecution then is a highly penal one, and the penalty should not be inflicted, unless the infractions of the law shall be established beyond reasonable doubt”).

IV

Unfortunately, petitioner raises her due process arguments for the first time in this Court. As a result, the Texas Court of Appeals lacked the opportunity to address them in the first instance. I therefore concur in the denial of certiorari. Whether this Court’s treatment of the broad modern forfeiture practice can be justified by the narrow historical one is certainly worthy of consideration in greater detail.

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The Exclusionary Rule

posted by Judge_Burke @ 17:49 PM
March 29, 2017

It is not always easy to apply the exclusionary rule.  The facts can be ambiguous.  The law may be ambiguous. We have excuses not to exclude evidence like “good faith” or “inevitable discovery.”  So, thinking about the exclusionary rule outside the context of a pending case is highly useful. 

Robert Belanger (Nineteenth Judicial Circuit Florida) has posted Judicial Decision Making and the Exclusionary Rule (Texas Review of Law & Politics, Vol. 21, No. 1, 2016) on SSRN.

Here is the abstract:

This article examines the factors that may influence how judges apply the exclusionary rule. When a suppression issue exists, we trust a judge to determine whether a search was unlawful, but we do not trust the judge to fashion an appropriate remedy, other than the per se exclusion of evidence. Judges may be reluctant to find Fourth Amendment violations because the only remedy for a Fourth Amendment violation is a rule of per se exclusion, a remedy that is often disproportionate to the underlying wrong. This lack of proportionality constitutes overdeterrence, so that the rule will be underenforced.

 

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Why Courts Fail to Protect Privacy…Is it a Fair Criticism?

posted by Judge_Burke @ 14:55 PM
March 27, 2017

Bernard ChaoCatherine S. DursoIan P. Farrell and Christopher T. Robertson (University of Denver Sturm College of Law, University of Denver, University of Denver Sturm College of Law and University of Arizona – James E. Rogers College of Law) have posted Why Courts Fail to Protect Privacy: Race, Age, Bias, and Technology (California Law Review (Forthcoming)) on SSRN.

Here is the abstract:

The Fourth Amendment protects against unreasonable “searches and seizures,” but in the digital age of stingray devices and IP tracking, what constitutes a search or seizure? The Supreme Court has held that the threshold question is supposed to depend on and reflect the “reasonable expectations” of ordinary members of the public concerning their own privacy. For example, the police now exploit the “third party” doctrine to access data held by email and cell phone providers, without securing a warrant, on the Supreme Court’s intuition that the public has no expectation of privacy in that information. Is that assumption correct? If judges’ intuitions about privacy do not reflect actual public expectations, it may undermine the legitimacy of the criminal justice system and exacerbate social unrest.

Although prior research has shown that the police disproportionately target younger people and minority communities, judges tend to be male, white, educated, affluent, and older than the general population. Their intuitions may thus be systematically different. Even worse, cognitive science suggests that judges may have difficulty putting themselves into the shoes of the searched person or considering the reasonableness of the police tactics from an ex ante perspective, without knowledge about the fruits of the search.

With 1200 respondents, we conducted a large-scale survey experiment to test whether, and if so, why, contemporary Fourth Amendment jurisprudence diverges from the societal norms it purports to protect and reflect. We identify a range of privacy expectations for 18 different police practices. We use oversampling, reweighting, and randomization to investigate particular causes of this disparity between judicial and public expectations. We conclude by suggesting better ways forward, so that social science evidence can replace judicial speculation.

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