Sentencing Offenders with Mental Health Conditions and Disorders

posted by Judge_Burke @ 21:53 PM
April 15, 2019

From Judge Wayne Gorman:

In Overarching Principles: Sentencing Offenders with Mental Health Conditions or Disorders, Consultation, April 9, 2019, the Sentencing Council for England and Wales has published a “draft guideline for courts to use when sentencing offenders with mental health conditions, neurological impairments or development disorders”.

The Sentencing Council notes that “[a]vailable evidence suggests that people in the criminal justice system are more likely to suffer from mental health problems than the general population, for example, when a survey screened prisoners on arrival at prison, 23 per cent reported that they had some prior contact with mental health services. 17 per cent of the prison population is thought to have a learning disability compared with 2 per cent of the population, and while the exact number of people with autism in prison is unknown, the proportion is thought to be double that within the general population. A recent study showed that Hospitalised Head Injury (HHI) was found in 24.7 per cent of prisoners and was significantly more prevalent than found in the matched general population sample”.

Under the heading, “Assessing Culpability”, the Sentencing Council listed the following factors for consideration (at page 9):

Did the offender’s condition mean it impaired their ability to exercise appropriate judgement?

Did the offender’s condition impair their ability to make rational choices, or to think clearly?

Did the offender’s condition impair their ability to understand the nature and consequences of their actions?

Did the offender’s condition have the effect of making them disinhibited?

Were there any elements of premeditation or pre-planning in the offence, which might indicate a higher degree of culpability?

Were there attempts to minimise their wrongdoing or to conceal their actions, which might indicate a higher degree of culpability?

Did the offender have any insight into their illness, or did they lack insight?

Did the offender seek help, and fail to receive appropriate treatment or care?

If there was a lack of compliance in taking medication or following medical advice, was this influenced by the condition or not?

If the offender exacerbated their condition by drinking/taking drugs, were they aware of the potential effects of doing so?


What Is Excessive? An Issue Many Judges Are About To Be Asked To Decide

posted by Judge_Burke @ 21:23 PM
April 11, 2019

By Martin Kaste

Tyson Timbs won his Supreme Court case in February, but he still doesn’t have his Land Rover.

“I want my truck back, I’ve always wanted it back,” says Timbs, whose Land Rover was seized by police in Indiana. They took it after he was arrested for selling a small amount of heroin to undercover cops; he served a period of house arrest and probation for the drug crime, punishments he accepted.

But Timbs never accepted that police were also entitled to his $42,000 vehicle, which he’d bought with proceeds from an insurance settlement.

“I thought it was kind of ridiculous that they could take my vehicle so easily,” he says.

And yet this kind of confiscation is common. Called “civil asset forfeiture,” it was developed as a law enforcement tactic in the drug war of the 1980s. Authorities use the lower standard of proof of civil law to take property — usually cars or cash — based on the suspicion it’s associated with crime. In Timbs’ case, police suspected he’d used the Land Rover to transport heroin. Since the tactic was developed, billions of dollars of assets have been seized this way.

View Full Story From NPR.


Will The Sky Fall If There Is Bail Reform?

posted by Judge_Burke @ 20:59 PM
April 10, 2019

A report by state judicial officials in New Jersey concludes that recent bail reforms have not generated a spike in crime rates predicted by prosecutors and bail industry advocates. See NORTHJERSEY.COM for this story.


An Interesting Read: Justice Sandra Day O’Connor

posted by Judge_Burke @ 20:21 PM
April 9, 2019

From the ABA Journal:

Retired Justice Sandra Day O’Connor privately commented that her replacement was dismantling her legacy, according to a new O’Connor biography scheduled for release on March 19.

O’Connor, known as a swing justice, believed that conservative Justice Samuel A. Alito Jr. had betrayed her accomplishments, according to biographer Evan Thomas. The National Law Journal and NPR have previews of the book, First, Sandra Day O’Connor: An Intimate Portrait of the First Woman Supreme Court Justice.

O’Connor had viewed Alito as aloof and told a friend that he had no sense of humor, according to the book.

NPR calls the new book “an unvarnished and psychologically intuitive look at the nation’s first female Supreme Court justice, and some of her contradictory characteristics. She was tough, bossy, relentless and, beneath that, she could be emotional. In private, she was not afraid to cry—and she had a soft spot for others when they needed it.”

While on the court, O’Connor encouraged collegiality by trying to get more justices to show up for weekly lunches. At first, only four justices were attending. O’Connor would show up in missing justices’ chambers and sit there until they came with her, the biographer told NPR.

O’Connor persevered when Justice Clarence Thomas joined the court in 1991 after a difficult confirmation battle. Justice Thomas at first turned down her invitations to the weekly lunch, but he eventually joined the group.

“A little simple thing, but he joined the group because he realized that life has got to go on, this group has got to get along,” Evan Thomas told NPR. “She made him realize that.”

The book also reveals O’Connor’s role in the Bush v. Gore decision halting a Florida recount in the 2000 presidential election. The court’s decision paved the way for George W. Bush to become president.

O’Connor persuaded Justice Anthony M. Kennedy to join her reasoning that put an end to the recount, according to the National Law Journal’s preview of the book. Kennedy wrote the per curiam decision but O’Connor wrote the phrase that the ruling was “limited to present circumstances.”

O’Connor retired from the court in 2006 with the goal of helping her husband, who had Alzheimer’s disease. She revealed in October that she also has the beginning stages of dementia that is probably Alzheimer’s. Her brother Alan had said her greatest fear was that she would get the disease, according to the biography.



Should The American Judges Association Reach Out To Immigration Judges?

posted by Judge_Burke @ 18:03 PM
April 8, 2019

The American Judges Association is a unique professional association for judges. Perhaps the time has come for us to reach out to the immigration judges and invite them to join. They are a beleaguered group of judges who could use our support.  The American Bar Association says the nation’s immigration courts are on the “brink of collapse” due to the high volume of cases. See CNN. Also on the brink of collapse in many jurisdictions is the volunteer network helping migrant families like the ones now in Arizona. See AZ Mirror.



Constitutional Rights Of The Homeless

posted by Judge_Burke @ 19:43 PM
April 4, 2019

A federal appeals court earlier this week confirmed that the homeless cannot be prohibited arbitrarily from sleeping outside by sweeping city ordinances designed to clear out public property. The 9th U.S. Circuit Court ruling applies to all Western states in its jurisdiction, including Washington, where there has been a bitter battle in Seattle over what to do with sprawling homeless encampments. View the opinion here.


Can US Judges Learn From The Experience In Canada?

posted by Judge_Burke @ 20:14 PM
April 2, 2019

Colton Fehr (University of Alberta – University of Alberta, Faculty of Law, Students) has posted Infusing Reconciliation into the Sentencing Process ((2019) 28:2 Constitutional Forum 25) on SSRN. Here is the abstract:

The Canadian criminal justice system has long been criticized for its over-incarceration of First Nations peoples. In response, Parliament required that courts consider the unique circumstances impacting First Nations persons before passing sentence, and in particular before imposing a sentence of imprisonment. Although these efforts are important for reconciling relations between First Nations people and Canada, scholars have paid inadequate attention to whether the process in which the vast majority of sentencing hearings are conducted might also hinder reconciliation. In this article, I contend that the traditional order of sentencing submissions will generally fail to facilitate important dialogue between state representatives and First Nations people. I propose that reversing the order in which counsel make sentencing submissions would allow for a dialogical approach to sentencing that would better ensure that First Nations offenders feel they are treated fairly by the criminal justice system


Should Courts Promote The Ability To Get An Expungement?

posted by Judge_Burke @ 20:33 PM
April 1, 2019

J.J. Prescott and Sonja B. Starr (University of Michigan Law School and University of Michigan Law School) have posted Expungement of Criminal Convictions: An Empirical Study on SSRN. Here is the abstract:

Laws permitting the expungement of criminal convictions are a key component of modern criminal justice reform efforts and have been the subject of a recent upsurge of legislative activity. This debate has been almost entirely devoid of evidence about the laws’ effects, in part because the necessary data (such as sealed records themselves) have been unavailable. We were able to obtain access to deidentified data that overcomes that problem, and we use it to carry out a comprehensive statewide study of expungement recipients and comparable non-recipients. We offer three key sets of empirical findings. First, among those legally eligible for expungement, just 6.5% obtain it within five years of eligibility. Drawing on patterns in our data as well as interviews with expungement lawyers, we point to reasons for this serious “uptake gap.” Second, those who do obtain expungement have extremely low subsequent crime rates, comparing favorably to the general population—a finding that defuses a common public-safety objection to expungement laws. Third, those who obtain expungement experience a sharp upturn in their wage and employment trajectories; on average, within two years, wages go up by 25% versus the pre-expungement trajectory, an effect mostly driven by unemployed people finding jobs and very minimally employed people finding steadier or higher-paying work.


Darn I Hope To Issue A Few Orders After I Die

posted by Judge_Burke @ 19:15 PM
March 26, 2019


A judge on the United States Court of Appeals for the Ninth Circuit, the Honorable Stephen Reinhardt, died on March 29, 2018, but the Ninth Circuit counted his vote in cases decided after that date.

The Supreme Court of the United States noted that in “the present case, Judge Reinhardt was listed as the author of an en banc decision issued on April 9, 2018, 11 days after he passed away. By counting Judge Reinhardt’s vote, the court deemed Judge Reinhardt’s opinion to be a majority opinion, which means that it constitutes a precedent that all future Ninth Cir­cuit panels must follow”.

The Unites States Supreme Court concluded that “federal judge” are appointed for “life, not for eternity”:

Because Judge Reinhardt was no longer a judge at the time when the en banc decision in this case was filed, the Ninth Circuit erred in counting him as a member of the majority. That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death. But federal judges are appointed for life, not for eternity.

We therefore grant the petition for certiorari, vacate the judgment of the United States Court of Appeals for the Ninth Circuit, and remand the case for further proceed­ings consistent with this opinion.


Be Careful About Your Guilty Pleas

posted by Judge_Burke @ 19:35 PM
March 25, 2019

Myeonki Kim (Korean National Police University) has posted Conviction Beyond a Reasonable Suspicion? The Need for Strengthening the Factual Basis Requirement in Guilty Pleas (Concordia Law Review 3(1), 2018) on SSRN. Here is the abstract:

Does the court, before accepting a guilty plea, check the accuracy of the plea agreement in any significant way? This article addresses the issues on judges being unconcerned or the inconsistent practice of guiding the stages of guilty plea. The article further suggests that the judge should carefully review its factual basis to avoid a wrongful guilty plea. Although Rule 11(b) of the Federal Rule of Criminal Procedure requires the judges to check the factual basis of the guilty plea, the rule is not paid much attention to legal professionals. Setting the adversarial culture aside, the rule itself has a structural problem not to be enforced properly during a plea colloquy. Instead of revising the rule, this article proposes a newer interpretation to induce judges more responsible to confirm the factual basis. This could be a practical solution 1) to filter out an inaccurate pleading guilty, 2) to increase the accountability of the prosecution in guilty plea, and 3) to help the defendant make more informed plea decisions.