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. 

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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.

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Is the Reasonable Expectation of Privacy Standard Doomed?

posted by Judge_Burke @ 14:30 PM
October 23, 2017

David C. Gray (University of Maryland Francis King Carey School of Law) has posted an abstract of The Fourth Amendment Categorical Imperative (116 Michigan Law Review Online 14 (2017)) on SSRN.

Here is the abstract:

In an effort to bring the Fourth Amendment into the twentieth century, the Court formulated a brand-new definition of “search” in Katz v. United States based on reasonable expectations of privacy. Although perhaps progressive for its time, the Katz definition of “search” has rendered the Fourth Amendment nearly moot in the twenty-first century. That is because modern tracking, surveillance, data aggregation, and data analysis technologies — all of which engage in “searches” by any common definition — exploit information in which, the Court has held, we do not have reasonable expectations of privacy. As a consequence, searches conducted using these means and methods are not regulated by the Fourth Amendment because they are not regarded as “searches” at all. 

In 2012 the Court indicated that it was inclined to revisit or revise Katz. It appears poised to do just that during the October 2017 term, but has yet to signal where it might go or why. This essay offers a way forward that relies on the text and history of the Fourth Amendment and insights from Immanuel Kant to provide a concise test the Court can apply to determine when the Fourth Amendment restrains the otherwise unfettered discretion of government agents to engage in searches and seizures.

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Ever Wonder Where the Phrase “Criminal Justice System” Came From?

posted by Judge_Burke @ 14:30 PM
October 20, 2017

Sara Mayeux (Vanderbilt University – Law School) has posted The Idea of ‘The Criminal Justice System’ (American Journal of Criminal Law, Forthcoming) on SSRN.

Here is the abstract:

The phrase “the criminal justice system” is ubiquitous in discussions of criminal law, policy, and punishment in the United States — so ubiquitous that almost no one thinks to question the phrase. However, this way of describing and thinking about police, courts, jails, and prisons, as a holistic “system,” dates only to the 1960s. This essay contextualizes the idea of “the criminal justice system” within the rise of systems theories more generally within intellectual history and the history of science. The essay first recounts that more general history of systems thinking and then reconstructs how it converged, in 1967, with the career of a young systems engineer working for President Johnson’s Crime Commission, whose contributions to the 1967 report The Challenge of Crime in a Free Society launched the modern and now pervasive idea of “the criminal justice system.” Throughout, the essay reflects upon the assumptions and premises that go along with thinking about any complex phenomenon as a “system” and asks whether, in the age of mass incarceration, it is perhaps time to discard the idea, or at least to reflect more carefully upon its uses and limitations. For instance, one pernicious consequence of “criminal justice system” thinking may to be distort appellate judges’ interpretations of Fourth Amendment doctrine, because they imagine their rulings to be hydraulically connected in a “system” with crime rates.

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Preventive Detention

posted by Judge_Burke @ 14:30 PM
October 19, 2017

The National Center for State Courts’ Pretrial Justice Center for Courts has issued a policy brief on preventive detention. The paper provides historical legal context to preventive detention, outlines due process concerns, and identifies jurisdictions that employ preventive detention. Additional, in-depth information about preventive detention is available in “Model” Bail Laws: Re-Drawing the Line Between Pretrial Release and Detention by Tim Schnacke, of the Center for Legal and Evidence Based Practices.

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Race & The Fourth Amendment

posted by Judge_Burke @ 14:30 PM
October 18, 2017

Race and the Fourth Amendment is one of the most critical issues facing the criminal justice system. Lindsey Webb (University of Denver Sturm College of Law) has posted Legal Consciousness As Race Consciousness: Expansion of the Fourth Amendment Seizure Analysis Through Objective Knowledge of Police Impunity (Seton Hall Law Review, Forthcoming) on SSRN. The title might scare you off, but the content is interesting.

Here is the abstract:

Encounters between police officers and members of the community are deeply influenced by race. Yet when courts assess whether police officers have complied with the Fourth Amendment, they explicitly exclude consideration of the ways in which the police-civilian interaction was influenced by racial bias, assumptions, and fear. In determining whether law enforcement officers seized a civilian, for example, courts look to the objective circumstances of the event, such as the number of officers involved, whether police weapons were drawn, and the tone of voice the officers used. They then assess whether, under such circumstances, a reasonable person would feel free to refuse law enforcement requests or otherwise terminate the encounter. Courts disregard the racial dynamics of the interaction as falling outside of the objective parameters of the seizure inquiry.

This Article suggests a novel pathway to a racially conscious reasonable person standard that does not require courts to abandon their allegiance to objectivity.

This approach focuses attention on the assumption, already inherent to that inquiry, that a reasonable person is one with a knowledge of the controlling law. A reasonable person is thus one with an understanding both of Fourth Amendment jurisprudence and the legal doctrine intended to deter or punish police misconduct, such as criminal and civil liability and the exclusion of illegally obtained evidence from criminal trials. A reasonable person with such knowledge would understand that police officers are not meaningfully constrained in the moment and are not consistently held accountable by the law. This approach would thus serve to shift the Fourth Amendment seizure analysis closer to racial realities by requiring courts to engage with the lack of police accountability as an issue of consequence to all reasonable people.

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For many state court judges there has been a frustration with how the Byrne Grant program is administered. Many judges feel that too much of the money goes to law enforcement and too little goes to the courts. And for some there is a belief that even less goes to the beleagured public defense system. If you are in this latter camp, then this notable paper authored by Robynn Cox and Jamein Cunningham might be of interest to you. 

Here is the abstract: 

We estimate the effectiveness of the Edward Byrne Memorial State and Local Law Enforcement Assistance Program, a grant program authorized under the 1988 Anti-Drug Abuse Act to combat illicit drug abuse and to improve the criminal justice system, on racial bias in policing. Funds for the Byrne Grant program could be used for a variety of purposes to combat drug crimes, as well as violent and other drug related crimes.

The event-study analysis suggests that implementation of this grant resulted in an increase in police hiring and an increase in arrests for drug trafficking. Post-treatment effect implies a 107 percent increase in white arrests for drug sales compared to a 44 percent increase for blacks 6 years after the first grant is received.  However, due to historical racial differences in drug arrests, the substantial increase in white drug arrest still results in large racial disparities in drug arrests.  This is supported by weighted least squares regression estimates that show, for every $100 increase in Byrne Grant funding, arrests for drug trafficking increased by roughly 22 per 100,000 white residents and by 101 arrests per 100,000 black residents.

The results provide strong evidence that federal involvement in narcotic control and trafficking lead to an increase in drug arrests; disproportionally affecting blacks.

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Should I Recuse?

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

IAALS released Judicial Recusal Procedures: A Report on the IAALS Convening. The report offers eight recommendations for making recusal procedures for state court judges more transparent, fair, and timely. The report was co-authored by Russell Wheeler (Brookings Institution, Governance Institute, and IAALS Board of Advisors) and Malia Reddick (Manager of IAALS’ Quality Judges Initiative). 

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Doing Independent Research

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

Recently a friend prompted me to think about the propriety of judges doing independent research. Courts and scholars have long debated the propriety of judges doing their own research and fact-finding, a debate that has intensified in recent years with the ease of internet research. The U.S. Court of Appeals for the Seventh Circuit, largely driven by recently retired Judge Richard Posner, has been at the epicenter of that debate.

Frankly, reasonable minds may differ about when it is appropriate. But if at first blush you think this is an issue that others can worry about, I beg to differ on that score. Judicial information-gathering can run afoul of ethics rules if the research would “appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.” United States v. Harris, 271 F3d 690 (7th Cir 2001).

Courts, however, have been hesitant to find that independent research on more general issues results in “personal knowledge of facts that are in dispute.” Other limits on judicial curiosity stem from due process values, specifically the importance of giving parties notice and an opportunity to respond to new information. These fundamental values are not only constitutionally based, but are also embodied in a number of litigations.

I came across some interesting material which I thought I might as well share. 

  • Former Minnesota Chief Justice Eric Magnuson has a quiz, here
  • The American Bar Association has a very good paper, here.
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What Happens After a Finding of Not Guilty By Reason of Mental Illness

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

“The laws that govern the practice of committing people who are acquitted because of mental illness dictate that they be hospitalized until they’re deemed safe to release to the public, no matter how long that takes,” writes Mac McClelland. What that means, frequently, is a life sentence in a grim, prison-like institution determined by a series of doctors, not judges, for those who never have been convicted of a crime.

From The New York Times

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