Stop & Frisk

posted by Judge_Burke @ 17:14 PM
April 16, 2018

If you were fortunate enough to attend the American Judges Association Annual Conference in Cleveland last fall you got the chance to see the courthouse where Terry v. Ohio began. The case, as you know, eventually ended up in the United States Supreme Court. Aside from the legal issue, an historical aside was the case was the first time the lawyers for both sides were black. But, now for today.

Evaluating the validity of stop and frisk is what many judges do and it is not always easy. David Rudovsky and David A. Harris (University of Pennsylvania Law School and University of Pittsburgh – School of Law) have posted Terry Stops-and-Frisks: The Troubling Use of Common Sense in a World of Empirical Data (Ohio State Law Journal, Forthcoming) on SSRN.

Here is the abstract:

The investigative detention doctrine first announced in Terry v. Ohio and amplified over the past fifty years has been much analyzed, praised, and criticized from a number of perspectives. Significantly, however, over this time period commentators have only occasionally questioned the Supreme Court’s “common sense” judgments regarding the factors sufficient to establish reasonable suspicion for stops and frisks. For years, the Court has provided no empirical basis for its judgments, due in large part to the lack of reliable data. Now, with the emergence of comprehensive data on these police practices, much can be learned about the predictive power of suspect conduct and other predicates for law enforcement interventions. And what has been learned calls into question a number of factors that have been credited over many years.

No observer of the legal system can fail to notice the growing role of data and empirical analysis in the courts. A disparate set of cases have turned in large part on rigorously analyzed data. Yet this trend has not taken root in an important set of cases involving the widely used practice of stop-and-frisk. When stop-and-frisk practices become the subject of litigation, courts generally either have no data to review or have failed to engage in empirical analysis of the data that are available and which could be used to test the claims of reasonable suspicion. Rather, the courts invoke the conventional wisdom that as a matter of common sense certain conduct, for example, furtive movement, flight, bulges in clothing, and suspect location, indicates criminal conduct.

We have no argument with common sense propositions; we have no aversion to clear, straightforward thinking. But what this phrase often reflects is a set of unexamined (even if widely held) assumptions. The proliferation of data on these basic questions provides the means for empirical analysis, and it is our argument that courts should do so in assessing reasonable suspicion factors in the same manner that they have engaged in empirical judgments, using both big and targeted data, in other areas.


From the Legally Weird Blog

posted by Judge_Burke @ 14:30 PM
April 12, 2018

200 Roosters Held in Arkansas Jail Evidence in Cockfighting Case

By Molly Zilli, Esq.

What do you do when you have to keep hundreds of roosters as evidence of a crime? Put ‘em in jail. That’s what one Arkansas sheriff decided to do after arresting over a hundred people suspected of participating in cockfighting. Now a court will have to decide what to do with the jailbirds while neighbors put up with the noise.

Continue reading 200 Roosters Held in Arkansas Jail Evidence in Cockfighting Case .


Thinking About Juries

posted by Judge_Burke @ 15:00 PM
April 11, 2018

Richard Jolly (New York University (NYU), School of Law – Civil Jury Project) has posted The New Impartial Jury Mandate (117 Michigan Law Review _ (2019 Forthcoming)) on SSRN.

Here is the abstract:

Impartiality is the cornerstone of the Constitution’s jury trial protections. Courts have historically treated impartiality as procedural in nature, meaning that the Constitution requires certain prophylactic procedures which secure a jury that is more likely to reach verdicts impartially. But in Peña-Rodriguez v. Colorado, 137 S.Ct. 855 (2017), the Supreme Court recognized for the first time an enforceable, substantive component to the mandate. There, the Court held that criminal litigants have a Sixth Amendment right to jury decisions made without reliance on extreme bias, specifically on the basis of race or national origin. The Court did not provide a standard for determining when evidence of partiality is sufficient to set aside a verdict, but made clear that an otherwise procedurally adequate decision may fall to substantive deficiencies.

This Article advances a structural theory of the Constitution’s Impartial Jury Mandate, focusing on the interplay between its ex-ante procedural and ex-post substantive components.

The Article argues that the mandate has traditionally taken shape as a collection of procedural guarantees because of a common law prohibition on reviewing the substance of jury deliberations. Pena-Rodriguez tosses this constraint, allowing judges for the first time to review the rationales upon which jurors base their verdicts. The Article then offers a novel approach for applying substantive impartiality more broadly by looking to the Equal Protection Clause’s tiers of scrutiny. It concludes that ex-ante procedural rules and ex-post substantive review can operate in conjunction to tease out undesirable, impermissible forms of jury bias, while still allowing for desirable, permissible forms of jury bias.


Excessive Fines

posted by Judge_Burke @ 16:06 PM
April 10, 2018

Anatole France once said, “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” Now, Beth A. Colgan (University of California, Los Angeles (UCLA) – School of Law) has posted The Excessive Fines Clause: Challenging the Modern Debtors’ Prison (UCLA Law Review, Vol. 65, No. 2, 2018) on SSRN.

Here is the abstract:

In recent years, the use of economic sanctions-statutory fines, surcharges, administrative fees, and restitution-has exploded in courts across the country. Economic sanctions are imposed for violations as minor as jaywalking and as serious as homicide, and can range from a few dollars to millions. When a person is unable to immediately pay off economic sanctions, “poverty penalties” are often imposed, including interest and collections fees and probation. Failure to pay economic sanctions can result in serious consequences, including prohibitions on obtaining or suspensions of driver’s and occupational licenses, restrictions on public benefits, and even incarceration. Even when poverty penalties are not employed, an inability to pay off criminal debt means that the punishment imposed, even for very minor offenses, can effectively be perpetual. Desperate to avoid these repercussions, people go to extremes to pay. In an alarming number of cases people report having to forego basic necessities like food, housing, hygiene, or medicine, in order to pay what little they can, even if just a few dollars at a time. These and countless other stories of people trapped in persistent debt are becoming ubiquitous, and have raised the specter that current practices amount to modern day debtors’ prisons.

Constitutional challenges to such practices have primarily focused on the narrow window of the post-sentencing collections context, relying on a series of Fourteenth Amendment cases prohibiting the automatic conversion of economic sanctions to incarceration where a debtor has no meaningful ability to pay. While these challenges can provide an important post hoc protection against the use of incarceration as a penalty for the failure to pay, they do not address the financial instability exacerbated by and ongoing threat of incarceration raised by debt from unmanageable economic sanctions.

A separate, albeit underdeveloped, constitutional provision that may be better suited to addressing the debtors’ prison crisis lies in the Eighth Amendment’s Excessive Fines Clause, which provides protection at sentencing. To date, the United States Supreme Court has only determined that criminal and civil forfeitures constitute fines. This Article examines the key concerns underlying those determinations, explicating the Court’s interest in treating economic sanctions as fines where they are used by the government to punish-evidenced by a link to prohibited conduct or treatment of economic sanctions like other recognized forms of punishment-as well as the Court’s desire that the Clause serve as a bulwark against the risk that the prosecutorial power will be abused due to the revenue generating capacity of economic sanctions. Applying these core concerns supports the conclusion that common forms of economic sanction (including statutory fines, surcharges, administrative fees, and restitution) constitute fines for purposes of the Clause.

In addition, this Article examines the meaning of excessiveness, arguing that one’s ability to pay is relevant to the question of whether a fine is constitutional. The Court has adopted the Cruel and Unusual Punishments Clause’s gross disproportionality test for measuring excessiveness. Attending to financial circumstances in the excessiveness inquiry is in harmony with key principles animating the proportionality doctrine: equality in sentencing, comparative proportionality between offenses of different seriousness, the expressive value of punishment, concern for the criminogenic effect of and other social harms caused by punishment, and the prohibition on punishments that unreasonably infringe on human dignity.


Misdemeanor Sentencing

posted by Judge_Burke @ 15:51 PM
April 3, 2018

Jenny Roberts (American University – Washington College of Law) has posted Informed Misdemeanor Sentencing (Hofstra Law Review, Vol. 46, No. 171, 2017) on SSRN.

Here is the abstract:

There is no such thing as a low-stakes misdemeanor. The misdemeanor sentence itself, which can range from time served to up to twelve years in some jurisdictions, is often significant. But the collateral consequences of such a conviction can be far worse, affecting a person’s work and home lives for decades, and sometimes for the rest of their lives. As a result of misdemeanor convictions, defendants can be fired from their jobs, barred from future employment in many fields, deported, evicted from public housing together with their entire family, and refused housing by private landlords. 

Under most theories of punishment, a judge at sentencing does not simply look back to the crime and its circumstances but also looks forward at the defendant’s future. Judges imposing sentences in misdemeanor cases should focus forward much more heavily than back, and should consider the collateral effects of a misdemeanor conviction on the defendant’s future. Viewed through that more expansive lens, and given the broad discretion of judges in misdemeanor sentencing and lack of existing guidance for that discretion, the sentencing function of judges in misdemeanor cases is in serious need of study and reform. 

This Article’s goal is two-fold. First, it contextualizes judicial responsibility for misdemeanor sentencing in the realities of the lower criminal courts, where a number of structural and systemic barriers — including violations of the right to counsel and pressures on judges to move cases along rapidly — affect but do not excuse the way judges go about sentencing. Second, the Article calls for judges to undertake “informed misdemeanor sentencing,” which draws on principles of proportionality and parsimony in determining the just sentence in a misdemeanor case. Accordingly, judges should explicitly acknowledge the many serious collateral consequences an individual suffers after any penal sanction, and incorporate those into the sentencing process to ensure that punishment is proportionate. In addition, judges should bring parsimony into the sentencing process by making more use of deferred adjudication as well as expungement and related mechanisms for mitigating the unintended effects of a misdemeanor conviction.​


Should Judges Surf the Web?

posted by Judge_Burke @ 19:18 PM
March 22, 2018

Judge Richard Posner would do it, and as this story from the Associated Press illustrates, Supreme Court Judges do it too:

Justice Sonia Sotomayor was only following the lead of her chief during Tuesday’s arguments over crisis pregnancy centers when she said she visited the website of one of the centers involved in the Supreme Court case.

When Chief Justice John Roberts did something similar seven years ago, no one uttered a peep. But after Sotomayor’s comment, Justice Anthony Kennedy piped up.

“Well, in this case I didn’t go beyond the record to look on the internet because I don’t think we should do that,” Kennedy said.

Going beyond the record, in legal terms, refers to material that is not part of the court record and so untested by the adversarial process.

But sticking to the record in Supreme Court cases can sometimes be more of a notion than a hard-and-fast rule.

In a case on campaign contribution limits in 2011, Roberts said he consulted the website of one of the parties to the case that morning and asked a question about what he saw. During arguments in 2016 over a Texas law that restricted abortion clinics, Justice Samuel Alito made use of an article from the Huffington Post. Justice Stephen Breyer will sometimes begin a question by saying he had his clerks look something up.

And even Supreme Court opinions sometimes go outside the record. In a 2012 opinion in an immigration dispute between Arizona and the Obama administration, Justice Antonin Scalia wrote about comments President Barack Obama made at a news conference discussing the just-unveiled plan to protect young immigrants from deportation.

In 2007, Kennedy himself cited anecdotal evidence in a supporting brief from 181 women who said they were injured by abortion in his opinion for the court upholding a federal ban on a procedure called partial-birth abortion by its opponents. “While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow,” Kennedy wrote, referencing the women’s brief.

In her dissent, Justice Ruth Bader Ginsburg criticized Kennedy for reaching a result that was not supported by the extensive record developed in the lower courts. She said the court was invoking “an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from “(s)evere depression and loss of esteem.” 


So should you surf the web, too? Maybe…but there are reasons to be cautious. Judges can conduct legal research online for cases not cited by the parties, but using the internet to find facts concerning the parties or subject matter poses ethical problems, according to an ABA ethics opinion.

Finding “adjudicative facts” about a case online is generally banned by the ABA Model Code of Judicial Conduct, according to ABA Formal Opinion 478. An exception allows judges to go online for facts that are subject to judicial notice because they are generally known and not subject to reasonable dispute.

Adjudicative facts concern the immediate parties, including who did what, where, when, how, and with what motive or intent, the ethics opinion explains.

Judges’ decisions must be based on evidence presented on the record or in open court, and that is available to all the parties, the ethics opinion says. In an adversarial system, judges should not combine the role of advocate, witness and judge.

The opinion cites Model Rule 2.9(C) of the Model Code, which states: “A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed.” Comment 6 to the rule says the ban on investigating facts “extends to information available in all mediums, including electronic.”

The opinion presents guidelines for independent factual research by judges.

• Is additional information needed to decide a case? If so, that type of information must be provided by the parties or the lawyers, or must be subject to judicial notice.

• Is the purpose of a judge’s inquiry to corroborate facts, discredit facts, or fill a factual gap in the record? If the facts are adjudicative, it is improper for the judge to do the research.

• Is the judge looking for general or educational information needed for a better understanding of a subject unrelated to a pending or impending case? If so, the inquiry is appropriate.

• Is the judge seeking background information about a party or about the subject matter of a pending or impending case? If the information is of factual consequence in determining a case, it must be subject to the adversary process.


American Judges Association in the News

posted by Judge_Burke @ 14:30 PM
March 21, 2018

Rightfully convicted, wrongfully sentenced.

You may know about the “conviction integrity units” that have popped up in district attorneys’ offices around the country to ferret out wrongful convictions. Now a new Philadelphia prosecutor has proposed “sentencing review units” to tackle a different problem:  cases where the guilty have been given excessive sentences.

In collaboration with The Nation, TMP’s Eli Hager has a story:  THE MARSHALL PROJECT


Thinking about Leadership and what Values that Entails

posted by Judge_Burke @ 14:47 PM
March 20, 2018

Great Britain has had its own set of scandals. In response, England has an advisory commission to develop principles relating to public life. The principles are a reminder of what public life should be about: selflessness, integrity, objectivity, accountability, openness, honestly & leadership. The Committee’s website and blogsite are worth a visit.


How Should We Instruct Juries About Reasonable Doubt?

posted by Judge_Burke @ 14:51 PM
March 16, 2018

Every day somewhere several juries are given instructions on reasonable doubt. Most of these instructions are given in language that few of us think about: “That is a form jig.” But, perhaps thinking about the language we use is worthwhile. 

Michael D. Cicchini (Independent) has posted Instructing Jurors on Reasonable Doubt: It’s All Relative (8 Calif. L. Rev. Online 72 (October 2017)) on SSRN.

Here is the abstract:

The Constitution protects us from criminal conviction unless the government can prove guilt beyond a reasonable doubt. However, this high burden is only as formidable as the words used to describe it to the jury. And many courts describe it in ways that lower, and sometimes even shift, the burden of proof.

This Article identifies four common jury-instruction flaws — the important-affairs-of-life analogy, the alternative-hypothesis test, the unreasonable-doubts warning, and the search-for-the-truth mandate — and then explains, both logically and empirically, how each one violates our due process rights.

After discussing the reasonable-doubt standard and common jury instruction flaws in Parts I and II, Part III discusses my attempt to win a very modest reform of Wisconsin’s jury instruction — a disastrous piece of work that incorporates all four of these burden-lowering defects. However, because my reform effort achieved only limited success, this Article advocates for a more aggressive approach: rewriting the burden of proof jury instruction from scratch.

This new jury instruction, presented in Part IV, is rooted both in logic and empirical evidence. Specifically, it avoids the four defects discussed in this Article. More generally, it focuses the jury’s attention on the level of proof the government must present, rather than on the kind of doubt the defense must create. This ensures that the burden remains with the government and is not shifted to the defendant.

Finally, and most importantly, to avoid the problems associated with nearly every attempt to define “proof beyond a reasonable doubt,” the proposed instruction describes the burden on a relative basis by comparing it to lower burdens of proof. Because these lower burdens — especially the “more likely than not” standard — are far more intuitive, they offer the best framework for explaining the high level of proof the government must satisfy to win a criminal conviction.


Who is Going Through Your Trash?

posted by Judge_Burke @ 20:23 PM
March 13, 2018

In California v. Greenwood, 486 U.S. 35 (1988), the United States Supreme Court held that the warrantless search and seizure of garbage bags left at the curb would violate the Fourth Amendment only if the defendant manifested a subjective expectation of privacy in their garbage that society accepts as objectively reasonable (how convoluted is that?).

Although Justices Brennan and Marshall dissented, that has remained the law (mostly). Justice White, writing for the majority, did say that individual states might decide the issue differently.

In 2015, the Minnesota Supreme Court rejected an opportunity to decide that the Minnesota Constitution should afford greater privacy rights. Justice David Lillehaug wrote in his dissent, “Minnesotans have a reasonable expectation of privacy when they put their household waste in opaque bags and do what the government requires: place the bags in closed containers for collection, compaction, and conveyance to a lawful disposal site. I respectfully disagree with the majority that the Minnesota Constitution does not require a search warrant before law enforcement may seize and search such household waste… Since the 1980s, when Oquist and Greenwood were decided, the nature of household waste has changed. This is not your grandfather’s garbage. Vastly more household waste is being recycled and the digital revolution is in full flourish. For good public policy reasons, government encourages and often requires citizens to segregate and set out or deliver for recycling.”

So, how would you feel if the local newspaper sent a reporter out to look at your garbage? Sound outlandish? Well, it happened in Portland, Oregon. To see the reaction go here.

There is a slightly cynical view of the United States Supreme Court (and perhaps some state supreme courts), that in order to apply the 4th Amendment, the justices just ask, “Could this happen to me?” Well, it could—someone might just decide to go through the justices’ garbage, so maybe California v. Greenwood is no longer the law.