New York Courts Think Outside The Box

posted by Judge_Burke @ 14:30 PM
December 7, 2017

How to deal with low level offenders is perplexing. Jailing them is expensive and likely has minimal long term effectiveness. Fines and fees have gotten out of hand. Governing Magazine has an interesting story about thinking outside of the box in the New York courts:

Like many other cities, New York wants to reduce its jail population and repeated lock-ups of low-level offenders. The city’s latest attempt to address that goal centers around a bold idea that could be modeled nationwide: Do away with all jail sentences of less than a month.

That’s the idea behind newSTART, a jail diversion program launched in New York last month. It keeps defendants who have committed low-level misdemeanors — things like petty larceny or possession of small amounts of illegal drugs — from entering jail. It would also apply to people convicted of thefts of service, such as jumping a subway turnstile or exiting a taxi without paying.

Instead, in exchange for a guilty plea, misdemeanor defendants can opt for one or more social service programs, including drug treatment, job training and mental health counseling.


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“We are hopeful that the program will stop the return to jail and [create] a virtuous circle,” says Elizabeth Glazer, director of the Mayor’s Office of Criminal Justice.

Right now, the program is limited to defendants who have been sentenced to up to 10 days in jail. If it’s successful, it will be expanded to those convicted of crimes carrying sentences up to 30 days.

But not all defendants who fit that time frame will be eligible.

The program specifically targets defendants in need of social services and those who have been repeatedly arrested for similar crimes. Almost three-quarters of those facing short-term sentences are unemployed, and more than 40 percent are homeless, according to the Mayor’s Office of Criminal Justice.

NewSTART is seen as an improvement from previous jail diversion programs. In the past, defendants who opted for jail diversion ran the risk of serving more time than their initial sentence if they failed to complete the diversion program. For example, a person could escape a five-day jail sentence by opting for a diversion program — but then end up sentenced to 30 days in jail if they failed to complete that diversion program.

That undermined the point of the diversion program, says Jennifer Scaife, executive director of Prevention, Diversion, & Reintegration for the Mayor’s Office of Criminal Justice. “People were opting for jail instead of services, which didn’t stop the cycle of going to jail repeatedly.”

Under the new plan, the city will recommend that those who fail to complete the program be sentenced to no longer than 15 days in jail. Final discretion for sentencing, however, remains with judges.

Proponents of sentencing reform have pointed to the economic and social disruptions that even a short stay in jail can impose on poor and at-risk populations.

“Since the individuals who qualify for this programming are not major threats to public safety, it is far more productive to engage them in constructive programming than to impose punishment,” says Marc Mauer, executive director of The Sentencing Project, a group that advocates for corrections reform. “Certainly, not everyone who goes through the program will succeed. But even a modest success rate will often be more beneficial than warehousing [inmates] in jail for a week.”

At its core, the program is designed to rely on the expertise of job counselors, drug treatment specialists and mental health providers to break the cycle of incarceration, says Glazer from the city’s criminal justice office.

“All these providers know how to change the behavior of the people they serve so they don’t go back to jail. They use strategies that teach people to make better decisions,” she says. “It’s not the same old, same old.”

Executing the plan has also required buy-in from both prosecutors and judges — complicated somewhat by the fact that New York actually has five separate borough court systems, each with its own judges and district attorneys. So far, the effort is in place in Manhattan, Brooklyn and the Bronx.

“NewSTART is a promising way to hold offenders accountable in a constructive and humane fashion which may also help decrease recidivism,” says acting Brooklyn District Attorney Eric Gonzalez.

The plan is part of the city’s broader effort to reduce its jail population, which has already been cut in half over the last 20 years when you include people awaiting court dates, according to the mayor’s office.

In 2016, Mayor Bill de Blasio committed $17.8 million to roll out a citywide bail alternative program. Building on pilot programs started in Queens and Manhattan during former Mayor Michael Bloomberg’s administration, the program allows low-level offenders to remain at home under court supervision while they await trial.  De Blasio also committed $89 million to address what had been a rise in the number of mentally ill inmates in city jails. The city is also on pace to close its notorious Rikers Island facility in the next 10 years. That jail has been plagued by gang violence, inmate abuse by guards and a 2015 incident in which inmates fell ill after consuming meatloaf containing rat poison.

Thanks to New York’s sheer size and prominence, other cities will undoubtedly be watching as it tests this new approach.

“There are efforts around the country to reduce jail time,” says Adam Mansky, director of operations at the Center for Court Innovation, which has partnered with New York to connect defendants with social workers. “New York has shown leadership in this area with supporting expanded use of alternatives to jail.”


How Good are Judges at Assessing Remorse?

posted by Judge_Burke @ 18:22 PM
December 6, 2017

Determining credibility is among the most difficult tasks a trial judge has. Judges make factual findings. But, judges are not necessarily better than others at figuring out who is telling the truth. For example, in a controlled study of 110 judges with an average of 11.5 years on the bench, judges did not do better than chance in telling who was being truthful and who wasn’t. See Paul Ekman & Maureen O’Sullivan, Who Can Catch a Liar?, 46 Am. Psychologist 913 (1991); Richard Schauffler & Kevin S. Burke, Who Are You Going to Believe?, 49 Court Rev. 124 (2013). 

Judge Learned Hand once said, “The spirit of liberty is the spirit which is not too sure that it is right.” So if determining who is telling the truth is problematic, what about determining the sincerity of remorse? 

There is a new paper, written by Professor Eve Hanan, that addresses this issue and is now available via SSRN. 

Here is the abstract:

Whether a defendant expresses remorse at criminal sentencing often has a direct bearing on the severity of the sentence.  But how good are judges at accurately assessing genuine, meaningful remorse?  Research demonstrates that judges hold contradictory and unfounded views about how sincere remorse should be expressed and, as a result, are likely to misjudge remorse.  Legal and social science scholars have grappled with the challenge of accurately assessing remorse, but no one has analyzed whether implicit racial bias skews remorse assessments at criminal sentencing in predictable and systematically discriminatory ways.

In an effort to unmask this mode of discrimination, this Article synthesizes two areas of scholarship not previously compared — (1) scholarship on the role of remorse in criminal sentencing and (2) social science research on implicit racial bias — to argue that unconscious cognitive assumptions about race and criminality causes judges to discredit African American displays of remorse and, as a consequence, sentence them to harsher punishments.  At a time when racial disparity and implicit bias dominates national discussions of criminal sentencing reform, improving our understanding of where our criminal justice system is particularly susceptible to racial bias can help reformers mend these weaknesses in our system to ensure it works equally for everyone.


In Tone and Criminal Justice

posted by Judge_Burke @ 15:35 PM
November 30, 2017

Federal District Court Judge Mark Bennett has been one of the nation’s judicial leaders in confronting the issue of implicit bias. He is one of the contributing authors of the ABA publication Enhancing Justice: Reducing Bias (as are Judge Steve Leben & I).

Judge Bennett and Victoria Plaut have a new paper that is well worth reading now on SSRN.

Here is the abstract:

Social psychologists have established that faces of Black males trigger thoughts of violence, crime, and dangerousness and thoughts of crime trigger thoughts and images of Black males. This presumption of dangerousness increases with darker skin tones (colorism) and greater Afrocentric facial features and affects both men and women.

We examine the history of the stereotype of Blacks and crime, violence, and dangerousness arising in the United States from the time of slavery. We focus on the historical development of this stereotype through a lens of history, literature, pseudo-science, emerging neuroscience, media distortion of crime reporting, and the development of the Negro-ape metaphor. We then look beyond the Black-White race dichotomy to explore the evolving social science literature examining the influence of skin tone and Afrocentric facial features on the length of criminal sentences. We further explore the social science supporting the presumption of dangerousness and conclude with recommendations to help ameliorate this problem that permeates the American criminal justice system.




Procedural Fairness from the Center for Court Innovation

posted by Judge_Burke @ 15:00 PM
November 14, 2017

From the Center for Court Innovation:

In a new TED Talk, Judge Victoria Pratt draws on her experience with Newark Community Solutions to explain the real-life impact of procedural justice.

“It’s a concept that says if people perceive that they are treated fairly and with dignity and respect, they’ll obey the law,” says Pratt.

The experience of Newark Community Solutions suggests that by addressing people respectfully, using plain language to ensure understanding, allowing defendants to voice their concerns, and emphasizing neutrality, justice agencies can help restore public trust in justice.

To learn more about procedural justice, watch our video or read our new book, and to learn how we have promoted this and other evidence-based strategies, follow us on Twitter or Facebook or subscribe to our newsletter.


Should We Drink Strong Coffee on the Bench?

posted by Judge_Burke @ 16:40 PM
November 13, 2017

Many years ago I had a civil trial where by week two, five of the six jurors had fallen asleep. When the last juror nodded off the lawyers approached the bench and pointed to the sleeping juror. In frustration, I responded that although I would wake up the juror, this was the last time I would. “The two of you put these jurors to sleep, so if you do it again you figure out how to wake them up.”  

The issue of whether it is an abuse of discretion not to wake up jurors was never raised on appeal, but I do allow jurors to drink coffee and indeed serve it to them. So, what about us? What happens if we fall asleep? Not to worry if you are a judge in Illinois.

Judges sleeping during trial? No problem, says Illinois appeals court:

It’s not “reversible error” requiring a new trial for the defendant. The case involved a defendant in a quadruple murder case whose judge fell asleep during the presentation of security camera footage. He was then “allegedly poked awake” by his clerk. Defense attorneys say the judge fell asleep repeatedly during the trial. The judge said he was listening with his eyes closed. Chicago Tribune


The Law of Stop

posted by Judge_Burke @ 15:30 PM
November 7, 2017

Each day many judges are confronted with how to apply the law of stop. We do it so often that there is a danger we could become a bit callous. Alexandra Natapoff (University of California, Irvine School of Law) has posted A Stop is Just a Stop: Terry’s Formalism (Ohio State Journal of Criminal Law, Vol. 15, 2017, Forthcoming) on SSRN.

Here is the abstract:

Terry v. Ohio expanded police authority by creating a new legal category—the stop based on reasonable suspicion, an easier standard to meet than an arrest based on probable cause. The formal line between those two categories, however, has turned out to be blurry. In practice, stops morph easily into arrests even without new evidence, an elision that Terry doctrine does not contemplate. The implications are significant for the enormous misdemeanor arena where legal rules generally lack traction, and Terry stops are common. Once those stops become arrests, they typically convert smoothly into criminal charges, which easily become convictions. Terry stops thus influence eventual outcomes far more than they should given their lightweight evidentiary basis. This slippery slope undermines the integrity of basic distinctions between policing and prosecution throughout the petty offense process, an unprincipled state of affairs exacerbated by the original Terry compromise.


How Would You Rule?

posted by Judge_Burke @ 15:31 PM
November 6, 2017

When a suspect has invoked the right to consult with a lawyer is occasionally not clear. It surely helps when there is a record such as an audio or video tape, but even then it may not be clear. Professor Eugene Volokh had this recent piece in The Washington Post. How would you rule? 

From last Friday’s opinion by Justice Scott J. Crichton, concurring in the Louisiana Supreme Court’s denial of review in State v. Demesme (paragraph breaks added):

I agree with the Court’s decision to deny the defendant’s writ application and write separately to spotlight the very important constitutional issue regarding the invocation of counsel during a law enforcement interview.

The defendant voluntarily agreed to be interviewed twice regarding his alleged sexual misconduct with minors. At both interviews detectives advised the defendant of his Miranda rights and the defendant stated he understood and waived those rights. Nonetheless, the defendant argues he invoked his right to counsel. And the basis for this comes from the second interview, where I believe the defendant ambiguously referenced a lawyer — prefacing that statement with “if y’all, this is how I feel, if y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog cause this is not what’s up.”

As this Court has written, “[i]f a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable police officer in light of the circumstances would have understood only that the suspect might be invoking his right to counsel, the cessation of questioning is not required.” State v. Payne(La. 2002); see also Davis v. United States (1994) (agreeing with the lower courts’ conclusion that the statement “[m]aybe I should talk to a lawyer” is not an unambiguous request for a lawyer). In my view, the defendant’s ambiguous and equivocal reference to a “lawyer dog” does not constitute an invocation of counsel that warrants termination of the interview and does not violate Edwards v. Arizona (1981).

Of course, amusing as this is, it’s possible that the transcript didn’t do the request justice: If there was a pause before and after “dog” (“why don’t you just give me a lawyer, dog”), then maybe the request was fairly clear. On the other hand, if the defendant did want a lawyer, he could have presumably asked again, and more clearly.



Plan For Your Disaster

posted by Judge_Burke @ 14:30 PM
November 3, 2017

Given the current hurricane season in the South, wildfires in the West, and who knows what other calamities elsewhere, we should all be thinking about how to handle disaster. Trends in State Courts has a review of recent efforts, mostly by legislatures, to give courts more power to handle disasters:

Maintaining Court Operations When Disaster Strikes: Emergency Powers

What happens when a courthouse is rendered unusable following a man-made or natural disaster? Many states have started to grant special powers to chief justices and court leadership to help courts meet these challenges.



Should We Create More Drug Courts?

posted by Judge_Burke @ 14:30 PM
November 2, 2017

As a long time proponent of drug courts, the easy answer to this question is:  of course. But perhaps……just perhaps……the answer is we ought to mainstream how the criminal justice system deals with addiction. 


More drug courts, easier access to opioid alternatives, urged by White House drug commission. 

The panel, led by New Jersey Governor  Chris Christie, also recommends changing an old federal policy that blocked Medicaid payments to inpatient treatment facilities with more than 16 beds for victims of substance abuse, clearing the way for more people to get more care more quickly. The administration still hasn’t authorized more funding to combat the opioid epidemic. THE WASHINGTON POST. Drug courts throughout the country have struggled with getting to scale. For many communities the problem is not the creation of a drug court it is getting more defendants in the existing drug court. Surely that is a money issue but it also is a criteria for admission to drug court  issue as well. Our drug court does not take dealers! Fair enough but an awful lot of users are simultaneously dealers. They buy some sell some and self finance their addiction. It might just be easier to self finance addiction by selling part of your drugs  as opposed to stealing and using the proceeds of theft to buy drugs. Our drug court does  not accept snitches or we do accept snitches but the police  don’t charge them right away. Law enforcement lets them “work” their way into eligibility for drug court. Today you maybe a dealer ineligible for drug court but a few months from now and a few arrests from now you will be eligible. Is there a solution? First, there needs to be real money to finance effective treatment. Second, An open minded assessment of criteria for eligibility needs to occur. Third getting people into treatment has to happen fast, real fast. If an arrest is the functional equivalent  of intervention then within hours connecting the defendant to treatment needs to occur. Finally, drug court need to have a supportive environment. 


Kristine A. Huskey (University of Arizona – James E. Rogers College of Law) has posted Justice for Veterans: Does Theory Matter? (59 Arizona Law Review 697 (2017)) on SSRN.

Here is the abstract:

The Veterans Treatment Court (“VTC”) movement is sweeping the nation. In 2008, there were approximately five courts. Currently, there are over 350 VTCs and veteran-oriented tracks in the United States. Most view this rapid proliferation as a positive phenomenon. VTC growth, however, has occurred haphazardly and most often without deliberate foundational underpinnings.

While most scholars assume that a therapeutic jurisprudence (“TJ”) modality is the paradigm for VTCs, there has been little examination of other theories of justice as appropriate for veterans and the courts that treat them. This Article addresses whether an alternative theory of justice — specifically, restorative justice (“RJ”) — can inform the theoretical foundation of a VTC to enhance its beneficial impact on veterans with post-traumatic stress disorder (“PTSD”), traumatic brain injury (“TBI”), or substance abuse issues. 

A primary feature of the RJ philosophy is that it is community-driven: it involves the victim, offender, and “community of interests” in the solution, process of restoration, and prevention of future misconduct. These principles are well suited for a VTC, which is also collaborative, community-based, and places extreme importance on the reintegration of the veteran back into society. These characteristics stem from an evolved theory that the community is ultimately responsible for the misconduct that was caused by the defendant’s military service. A hypothetical criminal case common in a VTC illustrates that RJ principles and framework may enhance the beneficial impact of VTCs. RJ may be just the theory of justice that brings to bear Sebastian Junger’s notion of a tribe as a means for the successful reintegration of veterans back into the community.