Civil Therapeutic Courts?

posted by Judge_Burke @ 20:56 PM
January 3, 2019

A Theory of Civil Problem-Solving Courts

by Jessica Steinberg, George Washington University – Law School, New York University Law Review, Vol. 93, 2018, Forthcoming. Here is the abstract:

This article is the first to develop a problem-solving theory for the civil justice system. Drug courts pioneered the problem-solving model in the 1990s to pursue therapeutic goals as an alternative to “assembly line” sentencing. This Article explores the potential for migration of the drug court framework into the two most commonly adjudicated civil cases: rental housing and consumer debt.

Three structural conditions in the civil courts—high-volume dockets, systemic lack of counsel, and corporate capture of the small claims process—routinely position vulnerable classes of individuals on the losing end of litigation. In the aggregate, these conditions have rendered the civil justice system predictably ineffective in combatting recurring social issues such as substandard housing and unscrupulous debt collection. The heart of the problem-solving theory in drug courts is the availability of an alternative remedy: treatment over prison. In civil courts, the remedy itself is not necessarily deficient; it is access to the remedy that is compromised. Relying on two years of field research in an experimental court, this Article demonstrates how core drug court principles, such as naming the purpose of the court as solving a social problem, interdisciplinary collaboration, and a strong judicial role, can be manipulated to address process failures in the civil justice system and reimagine the courts as proactive institutions responsible for the pursuit of socially beneficial outcomes.

The Article also argues that a civil problem-solving theory survives many of the valid critiques levied against drug courts. In particular, drug courts have come under fire for playing a moralizing role and using compulsory treatment as a form of social control. A civil problem-solving court, however, would not exacerbate the negative impact of state power on already over-burdened groups. Instead, the targets of monitoring and behavior modification are the more powerful private actors to the litigation, such as property owners and debt buyers, who otherwise have been known to manipulate the courts—an instrument of the state—to evade their legal obligations and suppress individual rights.


A Court by Any Other Name

posted by Judge_Burke @ 0:36 AM
January 2, 2019

Hon. Peggy Hora (Ret.) posted this article to the Justice Speakers Institute:

Drug Treatment Courts (DTC) and those that have a similar outlook have been called “problem-solving, accountability, behavioral justice, therapeutic, problem oriented, collaborative justice, outcome oriented and constructive intervention courts.”1 All rely on therapeutic jurisprudence and non-adversarial justice and all designations refer to a different way of doing business where the focus is on treatment and recovery rather than adjudication and disposition.

Therapeutic Jurisprudence

It all began with the development of Therapeutic Jurisprudence(TJ) in the late 1980s.  The term was first used by Professor David B. Wexler,  Distinguished Research Professor of Law at the James E. Rogers College of Law, Tucson, Arizona, Professor of Law at the University of Puerto Rico and the Director of the International Network on Therapeutic Jurisprudence, in a paper delivered to the National Institute of Mental Health in 1987. Along with the late Professor Bruce Winick, Silvers-Rubenstein Distinguished Professor of Law and Professor of Psychiatry and Behavioral Sciences at the University of Miami in Coral Gables, Florida, they suggested the need for a new perspective, TJ, to study the extent to which substantive rules, legal procedures, and the role of legal actors (lawyers and judges primarily) produce therapeutic or antitherapeutic consequences for individuals involved in the legal process.

Ten years later, Judges William Schma, Circuit Court in Kalamazoo, Michigan and Peggy Fulton Hora, Superior Court of California, were experienced drug treatment court judges who were interested in finding a jurisprudential basis for the DTC movement.  They found Wexler and Winick’s work, and, after meeting with them, decided it was a good fit.  In 1999 they, along with John T.A. Rosenthal, published the first article linking TJ with DTCs,2 “Therapeutic Jurisprudence and the Drug Treatment Court Movement: Revolutionizing the Criminal Justice System’s Response to Drug Abuse and Crime in America.”

The Conference of Chief Justices and the Conference of State Court Administrators appointed a Joint Task Force “to consider the policy and administrative implications of the courts and special calendars that utilize the principles of therapeutic jurisprudence and to advance strategies, policies and recommendations on the future of these courts.”3  They were presented with a resolution supporting and encouraging the dissemination of therapeutic jurisprudence theory in the nation’s court system through DTCs. There was an objection to the words “therapeutic jurisprudence” and the body adopted “Problem-Solving Courts” as the appropriate name.  The resolution, passed in August of 2000, said it was “recognizing that courts have always been involved in attempting to resolve disputes and problems in society, but understanding that the collaborative nature of these new efforts deserves recognition.”4

Solution Focused Courts

Another decade or so later, Magistrate Michael King in Australia developed a bench book5 on these types of courts and found “solution-focused” to be a better term.

“The processes the court uses to develop solutions—therapeutic, inclusive of participants and the court team—and in the concept of the solution that is being sought—addressing underlying issues and promoting an ability to lead a constructive, happy and law-abiding life in the community.”6

“…[T]he concept of a ‘problem-solving court’ does not recognize the centrality of participants in bringing about their rehabilitation. Rather, it implies that it is the court that solves the problem. This is not simply an issue with terminology. An examination of the underlying principles of different types of problem-solving courts—with the exception of some mental health courts—suggests they give inadequate weight to or ignore the central importance of participants being involved in decision-making concerning their rehabilitation in order to foster internal sources of motivation to change.”7

Somewhere along the way, the term “problem-oriented courts” was developed in Australia.  However, the Law Reform Commission of Western Australia had a quarrel with that terminology.  The Commission chose to use the term “court intervention programs” instead of the term “problem-oriented courts.”

They Are All the Same Kind of Court

Irrespective of the name such a court is called, the shared principles are:

  • Outcomes are the focus of the process, not traditional adversarial issues.
  • Procedural Justice/Fairness is fundamental to the process.
  • Decisions and procedures are evidence-based, manualized and there is fidelity to the model.
  • Decisions by the judge come after hearing from all the collaborative members of the team.
  • All principals of the Criminal Justice System are part of the team.
  • Focusing on addressing the underlying cause that triggered the current behavior.

Finally, we know that outcomes in these courts are better for the individual, his or her family, the community both through cost savings and reduction of crime and the judge.8

Read the full article with footnotes on the Justice Speakers Institute website.


Implementing Carpenter

posted by Judge_Burke @ 19:53 PM
December 28, 2018

Orin S. Kerr (University of Southern California Gould School of Law) has posted Implementing Carpenter (THE DIGITAL FOURTH AMENDMENT (Oxford University Press)) on SSRN. Here is the abstract:

In its June 2018 decision in Carpenter v. United States, the Supreme Court held that cell phone users have Fourth Amendment rights in their historical cell-site location records. Carpenter takes the Fourth Amendment in a new direction, adding new protections for non-content third-party business records. Carpenter prompts fundamental questions of what the Fourth Amendment means in the digital age. The Court is embarking on a new path. But what the new Fourth Amendment will look like, and what its limits may be, remain unclear.

This article is a discussion draft of two chapters from a book project, The Digital Fourth Amendment, forthcoming from Oxford University Press. The book argues that computers and the Internet should trigger new Fourth Amendment rules for the digital age. The facts of the digital world are different from the physical world, and new rules are needed to restore the role of the Fourth Amendment. The Supreme Court has already begun creating a Digital Fourth Amendment in Carpenter and its 2014 decision in Riley v. California. This book develops the rationale for the new rules, based on the theory of equilibrium-adjustment, and it offers a comprehensive picture of how the Fourth Amendment should apply to a wide range of doctrines.

The two chapters presented here offer a way to implement Carpenter. They develop and apply a test for Carpenter searches that is faithful to the decision, true to the theory of equilibrium-adjustment on which it rests, and yet also provides as much of the clarity that Fourth Amendment law demands as possible. Chapter 6, The Carpenter Shift, starts by explaining why Carpenter represents a departure from traditional Fourth Amendment principles based on a premature but explicit application of equilibrium-adjustment principles. It then argues that Carpenter should apply to Internet records when three requirements are met: The records exist because of the digital age, they are created without meaningful voluntary choice, and they tend to reveal the privacies of life. Chapter 7, Implementing Carpenter, explains that any records that satisfies these criteria should be protected. Courts should reject a mosaic theory that would limit Carpenter to long-term monitoring or case-by-case approaches that look to whether privacy invasions actually occurred. The Chapter ends by identifying specific examples of Internet records that should trigger Carpenter — and examples that should not.


Should The Police Be Allowed To Be The Prosecutor & Witness?

posted by Judge_Burke @ 18:05 PM
December 27, 2018

There are many states that have non-lawyers who act as judges in limited jurisdiction courts. So, the idea that you have to be a lawyer to be the prosecutor in those courts is problematic. But what if the prosecutor is the arresting police officer? Alexandra Natapoff has this piece in The New York Times. In part:

In hundreds of misdemeanor courts in at least 14 states, police officers can file criminal charges and handle court cases, acting as prosecutor as well as witness and negotiator. People must defend themselves against, or work out plea deals with, the same police officers who arrested them for low-level offenses like shoplifting or trespassing.

Consider South Carolina, where most of the 400 magistrate and municipal courts had no prosecuting attorneys, according to a 2017 study by the National Association of Criminal Defense Lawyers. The police prosecuted their own misdemeanor arrests, while 90 percent of defendants had no lawyers and so faced the arresting officer-prosecutor on their own. South Carolina also does not require its lower-court judges to be lawyers, so thousands of convictions occur without input from a single attorney.



Anonymous Juries

posted by Judge_Burke @ 16:35 PM
December 26, 2018

Most judges will go through their entire career never having even considered having an anonymous jury. But if you are confronted with a request there are implications to granting the request. Leonardo Mangat (Cornell University, Law School, Cornell University, Law School, Students) has posted A Jury of Your [Redacted]: The Rise and Implications of Anonymous Juries (Cornell Law Review, Vol. 103, No. 6, 2018) on SSRN. Here is the abstract:

Since their relatively recent beginnings in 1977, anonymous juries have been used across a litany of cases: organized crime, terrorism, murder, sports scandals, police killings, and even political corruption. And their use is on the rise. An anonymous jury is a type of jury that a court may empanel in a criminal trial; if one is used, then information that might otherwise identify jurors is withheld from the parties, the public, or some combination thereof, for varying lengths of time.

Though not without its benefits, anonymous juries raise questions regarding a defendant’s presumption of innocence, the public’s right to an open trial, the broad discretion afforded to judges, and the impacts of anonymity on juror decisionmaking.

In fact, one mock jury experiment found that anonymous jurors returned approximately 15% more guilty verdicts than their non-anonymous counterparts. The anonymous jury is unquestionably a potent tool that affords a court great flexibility to meet the exigencies of a trial head on. But its extraordinary characteristics counsel care in its empanelment. By adopting the Seventh Circuit’s approach to anonymous juries and requiring reasoned verdicts when they are used, anonymous juries may yet become an “inspired, trusted, and effective” instrument of justice.


What Every Trial Judge Needs to Know

posted by Judge_Burke @ 14:58 PM
December 25, 2018

A great many of the confirmed innocent defendant cases occurred because of faulty forensic science. And so if you want to be a great trail court judge understanding forensic evidence is essential.  Jennifer Mnookin (University of California, Los Angeles (UCLA) – School of Law) has posted The Uncertain Future of Forensic Science (147 Daedalus 99 (Fall 2018)) on SSRN. Here is the abstract:

Forensic science is at a crossroads. In the last two decades, often-used forms of pattern evidence, such as fingerprint, tool mark, and bite mark identification, have faced significant criticism for lacking adequate scientific validation or proven reliability. Is this the beginning of a sea change, signaling the rise of a science-based, empirically grounded approach to these forms of evidence, both in the courtroom and in the crime laboratory? Or has the increased attention produced Band-Aids rather than meaningful and lasting cures? This essay argues that the current state of forensic science reform is both “half empty” and “half full.” Looking first at bite mark evidence, then at modifications in the language used by forensic scientists for their courtroom testimony, and, finally, at the creation and the elimination of the National Commission on Forensic Science, this essay argues that we have thus far seen modest and meaningful – but far from adequate or transformative – reform. Our best hope for sustained, substantial changes necessary for improving forensic science evidence within our system of justice requires the creation of another national commission or other institutional body, made up of both research scientists and other institutional stakeholders, and situated as to prevent “capture” by either forensic practitioners or advocates within our adversarial system.


Iowa Supreme Court Rules (or Doesn’t) on Risk Assessments at Sentencing

posted by Judge_Burke @ 14:50 PM
December 24, 2018

There are few law professors as interesting as Doug Berman. From his Sentencing Law & Policy Blog, “ Iowa Supreme Court dodges due process challenges to use of risk-assessment tools at sentencing:”

A helpful reader made sure I did not miss a trio of rulings handed down late last week by the Iowa Supreme Court which all raised issues concerning the permissibility of courts using risk-assessment tools at sentencing. The rulings came in Iowa v. Gordon, Iowa v. Guise and Iowa v. Buesing, and in each instance the court decided that a constitutional challenges to the use of Iowa Risk Revised risk assessment tool (IRR) at sentencing was not properly raised and preserved at sentencing.  The Gordon case addresses this point most fully, and here is how the other cases describe the Gordon ruling:

Today, we filed an opinion in State v. Gordon, ____ N.W.2d ____ (Iowa 2018).  In Gordon, we held a defendant could not raise this due process argument for the first time on appeal when the defendant did not bring the issue to the district court at the time of sentencing.  Id. at ___. Furthermore, we held we could not address this due process issue under the rubric of ineffective assistance of counsel because the record is insufficient to reach this claim. Id.

Though the Gordon case has the fullest discussion of the merits in this trio of decisions, the Guise case is the best read  because of the Justice Appel’s extended opinion “concurring specially.” This concurrence talks through various concerns about the use of risk-assessment instruments at sentencing (with lots of cites to lots of academic scholarship), and here are a few notable passages:

Guise’s argument that due process requires accurate information about risk assessments beyond a mere conclusion, as demonstrated by Malenchik and Loomis, is certainly not frivolous. Certainly the shiny legal penny of a new risk assessment tool should be carefully scrutinized by the courts….  The relentless and potentially corrosive drive for efficiency and certainty in a resource-scarce public sector should not drive courts to use risk assessments in an unjustified “off label” manner or in a fashion that otherwise lacks meaningful empirical support to drive sentencing.

Even if the emerging risk assessment tools are found to have a place in sentencing as a “relevant” factor, our law does not allow mere conclusions to be mounted on spikes and paraded around our courtrooms without statistical context….

We do not know whether the IRR was normed with an appropriate Iowa population.  We do not know whether the tool has been renormed and monitored.  We do not know anything, really, about the database, assuming there is a database, behind the IRR.

I am also concerned about process issues lurking behind this case.  Ordinarily, the PSI report is made available to the defendant only a few days before sentencing…. But a few days’ notice is not enough time for a defendant to mount a serious challenge to the underlying reliability of the risk assessment evidence as being so unreliable as to be hocus pocus. A full-court press on the question of reliability of the risk assessment would likely require the hiring of a highly qualified expert.  Even if the defendant does not wish to mount a full-blown attack on the statistical model and instead wishes to make a more limited point — say, for instance, the disproportionate impact of use of housing, employment, and level of educational attainment of people of color — the defense will not be able to develop the attack in a few days, particularly when the defendant is indigent and will require court approval prior to the hiring of an expert to challenge the statistical information….

In conclusion, I want to make clear that I do not categorically reject any use of risk assessment tools in the sentencing process.  I recognize that the PEW Center on the States, the National Institute of Corrections, the National Center for State Courts, and the American Law Institute have all expressed interest in evidence-based sentencing.  See J.C. Oleson, Risk in Sentencing: Constitutionally Suspect Variables and Evidence-Based Sentencing, 64 SMU L. Rev. 1329, 1343, 1394 (2011).  I also recognize that sentencing based solely on “intuition” or “gut” runs the risk of allowing implied bias a free reign and can be lawless in nature.  See Chris Guthrie et al., Blinking on the Bench: How Judges Decide Cases, 93 Cornell L. Rev. 1, 5 (2007) (urging the justice system to take steps to limit the impact of overreliance on intuition).  Further, the “intuition” or “gut” of a judge who was a former prosecutor may well differ from the “intuition” or “gut” of a public defender.  Undisciplined intuitive sentencing runs the risk of telling us more about the judge than the person being sentenced.

A fully-developed record may well show that risk and needs assessment tools that assemble variables in a statistically valid way may be of some assistance as a check on unregulated sentencing discretion and may promote deeper thinking by discretionary decision-makers into the sentencing process.  In short, it is possible that when a full record is developed, properly designed and utilized risk assessment tools may enhance and inform the exercise of judicial discretion.  In addition to the binary question of whether a risk assessment may or may not be used in sentencing, however, more nuanced additional questions must be asked regarding how any such tool may be used. In light of the procedural posture of this case and the companion cases, these questions must await further legal developments.


News About Fine & Fee Reform

posted by Judge_Burke @ 14:50 PM
December 21, 2018

In California, the newly-formed Debt Free Justice California coalition achieved its first big win: Alameda County’s Board of Supervisors voted to abolish all of the county’s criminal justice fees, including fees for probation, public defenders, and the sheriff’s work alternative program. This does not eliminate fees imposed by the state of California, but discretionary (local) fees are still significant; as a recent report from the East Bay Community Law Center notes, the average adult on probation in Alameda County could be assessed over $6,000 in probation fees alone.


In early December, Chicago City Clerk Anna Valencia announced the creation of the Chicago Fines, Fees, & Access Collaborative, composed of Chicago City departments, elected officials, community organizations, and academic and advocacy organizations – including FFJC. The Collaborative will review fines, fees, & collections practices and will advance recommendations for reform, following the model of San Francisco’s Financial Justice Project. You can read more via ProPublica.


Who Pays? Fines, Fees, Bail, and the Cost of Courts

posted by Judge_Burke @ 15:57 PM
December 20, 2018

See this abstract from a Yale Law School Public Law Research Paper:

In the last decades, growing numbers of people have sought to use courts, government budgets have declined, new technologies have emerged, arrest and detention rates have risen, and arguments have been leveled that private resolutions are preferable to public adjudication. Lawsuits challenge the legality of fee structures, money bail, and the imposition of fines. States have chartered task forces to propose changes, and new research has identified the effects of the current system on low-income communities and on people of color. The costs imposed through fees, surcharges, fines, and bail affect the ability of plaintiffs and defendants to seek justice and to be treated justly.

This volume, prepared for the 21st Annual Arthur Liman Center Colloquium, explores the mechanisms for financing court systems and the economic challenges faced by judiciaries and by litigants. We address how constitutional democracies can meet their obligations to make justice accessible to disputants and to make fair treatment visible to the public. Our goals are to understand the dimensions of the problems, the inter-relationships among civil, criminal, and administrative processes, and the opportunities for generating the political will to bring about reform.


The Latest In Junk Science?

posted by Judge_Burke @ 17:03 PM
December 19, 2018

In the late 1800s and early 1900s there was a “science” which supporters claimed would revolutionize how the criminal justice system would approach deciding what to do: phrenology. The claim was that, by having your head examined by a phrenologist who would look at the shape and size of the cranium, there would be a reliable  indication of character and mental abilities. It is hard to find a phrenologist these days. One of the last ones was in Minneapolis. But his instrument was in a Museum of Quackery. Now there’s a thing called “vocal risk assessment” which purports to be able to determine a person’s culpability—level of risk, they call it—by the sound of their voice.

From The Intercept:

Is it possible to tell whether someone is a criminal just from looking at their face or listening to the sound of their voice? The idea may seem ludicrous, like something out of science fiction — Big Brother in “1984” detects any unconscious look “that carried with it the suggestion of abnormality” — and yet, some companies have recently begun to answer this question in the affirmative. AC Global Risk, a startup founded in 2016, claims to be able to determine your level of “risk” as an employee or an asylum-seeker based not on what you say, but how you say it.

The California-based company offers an automated screening system known as a Remote Risk Assessment, or RRA. Here’s how it works: Clients of AC Global Risk help develop automated, yes-or-no interview questions. The group of people selected for a given screening then answer these simple questions in their native language during a 10-minute interview that can be conducted over the phone. The RRA then measures the characteristics of their voice to produce an evaluation report that scores each individual on a spectrum from low to high risk. CEO Alex Martin has said that the company’s proprietary risk analysis can “forever change for the better how human risk is measured.”