There are many people in the United States who are uncomfortable with President Trump’s response to the violence in Charlottesville. Leaders from both political parties called upon the President to say something more forceful. Surely, the critics argue, thoughtful leaders should condemn the KKK and neo-Nazis. The problem with racism is ambiguity of language simply does not work. Racism is wrong. There is no grey or nuance. Racism is wrong.

Should a judge speak out about racism in our society or condemn the KKK? There are many reasons why it might not be appropriate for a Virginia judge to remain silent. Some Virginia judge is surely going to preside over litigation about what happened. But, what about judges in the 49 other states? Most will not say anything. Fear of ethical constraints is the most likely reason. So perhaps the United States judges could learn from the example of the Chief Justice of Canada.

Canada committed “cultural genocide” against Indigenous peoples through policies like Indian residential schools, which were created to wipe out the languages and cultures of pre-existing nations, said the country’s top judge in a speech delivered in 2015. Chief Justice Beverly McLachlin said Canada’s treatment of Indigenous peoples in the 19th and early 20th Century was aimed at annihilating their culture and language in a bid to solve John A. Macdonald’s “Indian problem” for good.

“In the buzz-word of the day, assimilation; in the language of the 21st Century, cultural genocide,” said the Chief Justice. “The most glaring blemish on the Canadian historic record relates to our treatment of the First Nations that lived here at the time of colonization.”

McLachlin said “an initial period cooperative inter-reliance grounded in norms of equality and mutual dependence” was supplanted by “the ethos of exclusion and cultural annihilation.”

She also listed some of the tactics Canada used to “solve” the Indian problem.

“Early laws forbade treaty Indians from leaving allocated reservations. Starvation and disease were rampant. Indians were denied the right to vote. Religious and social traditions, like the Potlatch and the Sun Dances, were outlawed. Children were taken from their parents and sent away to residential schools where they were forbidden to speak their native languages, forced to wear white man’s clothing, forced to observe Christian religious practices, and not infrequently subjected to sexual abuse,” said McLachlin.

McLachlin said for Macdonald and other Canadian officials at the time, “‘Indianess’ was not to be tolerated; rather it must be eliminated.”

McLachlin said Prime Minister Stephen Harper’s 2008 apology and the creation of the Truth and Reconciliation Commission, which were both the result of the multi-billion dollar residential school settlement between Ottawa, the churches and survivors, are examples of Canada coming to grips with this dark legacy.

“Yet the legacy of intolerance lives on in the lives of First Nation people and their children—a legacy of too much poverty, too little education and over-representation of Aboriginal people in our courts,” she said. “The lessons from the Canadian experience are replicated where intolerance has been systemically imposed—from Nazi attempts to eliminate Jews, gypsies and homosexuals, to Apartheid of South Africa, to the genocide of Rwanda. Intolerance doesn’t work and imposes enormous and unacceptable costs. Ultimately, the only way forward is the way of tolerance.” 

The Globe and Mail first reported on the speech.

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Professor Ram Should Have Written This Article Years Ago

posted by Judge_Burke @ 15:02 PM
August 16, 2017

If you are a judge in Minnesota, you might be wishing that this article was written years ago. Defense counsel access to source code plagued the Minnesota courts (state and federal) for several years. The result was many law enforcement agencies switched to preferring blood tests for which lab testing availability was not prepared. Prior to the source code litigation, blood tests were reasonably rare. Now there are nightly calls to judges seeking search warrants for blood tests.

Natalie Ram (University of Baltimore – School of Law) has posted Innovating Criminal Justice (Northwestern University Law Review, Forthcoming) on SSRN.

Here is the abstract:

From secret stingray devices that can pinpoint a suspect’s location to source code secrecy surrounding alcohol breath test machines, advanced forensic DNA analysis tools, and recidivism risk statistic software, the use of privately developed criminal justice technologies is growing. So too is a concomitant pattern of trade secret assertion surrounding those technologies. This Article charts the role of private law secrecy in shielding criminal justice activities, demonstrating that such secrecy is pervasive, problematic, and yet ultimately unnecessary for the production of well-designed criminal justice tools.

In so doing, this Article makes three contributions to the existing literature. First, the Article establishes that private secrecy tools — trade secrets foremost among them — now permeate American criminal justice, shielding privately developed criminal justice technologies from vigorous cross-examination and review. Second, the Article argues that private law secrecy surrounding the inner workings or even the existence of these criminal justice technologies imposes significant practical and potentially constitutional costs on individual defendants, the criminal justice system, and the development of well-designed criminal justice technology more broadly. Third, the Article brings the extensive literature on innovation policy to bear on the production of privately developed criminal justice technologies, demonstrating that trade secrecy is not essential to either the existence or operation of those technologies. The Article proposes alternative innovation policies that the government, as both a funder of research and the primary purchaser of criminal justice technologies, is uniquely well positioned to implement.

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How Often & Why Do You Reject Plea Bargains?

posted by Judge_Burke @ 14:15 PM
August 11, 2017

Federal district judge explains his remarkable reasons for rejecting an unremarkable plea deal in heroin dealing prosecution

 

From the Sentencing Law & Policy blog (a terrific resource for judges):

A helpful reader alerted me to a fascinating opinion issued last week by US District Judge Joseph Goodwin of the Southern District of West Virginia in US v. Walker, No. 2:17-cr-00010 (SD W. Va. June 26, 2017) (available here).  The full opinion is a must read, and here is its conclusion:

My twenty-two years of imposing long prison sentences for drug crimes persuades me that the effect of law enforcement on the supply side of the illegal drug market is insufficient to solve the heroin and opioid crisis at hand. I also see scant evidence that prohibition is preventing the growth of the demand side of the drug market. Nevertheless, policy reform, coordinated education efforts, and expansion of treatment programs are not within my bailiwick. I may only enforce the laws of illicit drug prohibition.

The law is the law, and I am satisfied that enforcing the law through public adjudications focuses attention on the heroin and opioid crisis.  The jury trial reveals the dark details of drug distribution and abuse to the community in a way that a plea bargained guilty plea cannot.  A jury trial tells a story.  The jury members listening to the evidence come away with personally impactful information about the deadly and desperate heroin and opioid crisis existing in their community.  They are educated in the process of performing their civic duty and are likely to communicate their experience in the courtroom to family members and friends.  Moreover, the attendant media attention that a jury trial occasions communicates to the community that such conduct is unlawful and that the law is upheld and enforced.  The communication of a threat of severe punishment acts as an effective deterrent.  As with other criminalized conduct, the shame of a public conviction and prison sentence specifically deters the sentenced convict from committing the crime again — at least for so long as he is imprisoned.

Over time, jury verdicts involving the distribution of heroin and opioids reinforce condemnation of the conduct by the public at large. In turn, respect for the law propagates.117 This respect for the law may eventually reduce such criminal conduct.

The secrecy surrounding plea bargains in heroin and opioid cases frequently undermines respect for the law and deterrence of crime.  The bright light of the jury trial deters crime, enhances respect for the law, educates the public, and reinforces their sense of safety much more than a contract entered into in the shadows of a private meeting in the prosecutor’s office.

For the reasons stated, I REJECT the plea agreement.

It will be quite interesting to see if the parties appeal this rejection of the plea agreement or if the defendant decides to plea without the benefit of any agreement (which I believe must be accepted if the judge finds it is voluntary).

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Plea Agreements as Constitutional Contracts

posted by Judge_Burke @ 14:15 PM
August 10, 2017

Plea Agreements As Constitutional Contracts

 

…is the title of this notable new article authored by Colin Miller available via SSRN.

Here is the abstract:

In his dissenting opinion in Ricketts v. Adamson, Justice Brennan proposed the idea of plea agreements as constitutional contracts and lamented the fact that the Supreme Court had yet to set up rules of construction for resolving plea deal disputes.  Since Adamson, courts have given lip service to Justice Brennan’s dissent and applied his reasoning in piecemeal fashion.  No court or scholar, however, has attempted to define the extent to which a plea agreement is a constitutional contract or develop rules of construction to apply in plea deal disputes.  This gap is concerning given that ninety-five percent of criminal cases are resolved by plea agreements.

This Article is the first attempt to defend the concept of plea agreements as constitutional contracts and establish a core rule of construction to guide judges in interpreting plea bargains. It advances two theses.  First, plea agreements are constitutional contracts whose constitutional protections extend to all matters relating to plea agreements.  Second, due process requires that courts treat pleading defendants at least as well as parties to other contracts, meaning all of the protections associated with contract law should be incorporated into plea bargaining law through the Due Process Clause.

This Article then argues that incorporation of one of these protections — the implied covenant of good faith and fair dealing — would lead to legal reform in three plea bargaining scenarios where pleading defendants are treated worse than parties to other contracts:

(1) substantial assistance motions;

(2) Brady disclosures; and

(3) prosecutorial presentation of sentencing recommendations.

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The Eighth Amendment Trumps a Mandatory Minimum

posted by Judge_Burke @ 15:20 PM
August 9, 2017

Rarely do courts in the United States overturn sentences on Eighth Amendment grounds. But, in a recent decision, a federal appeals court holds that a mandatory minimum sentence constitutes cruel and unusual punishment under the Eighth Amendment:

The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S. CONST. amend. VIII. Central to this prohibition is the requirement that the punishment for crime “be graduated and proportioned to the offense.” Graham v. Florida, 560 U.S. 48, 59 (2010). However, this proportionality principle is narrow, and it only forbids “extreme sentences that are grossly disproportionate tothe crime.” Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring in part and concurring in judgment). There are two types of Eighth Amendment challenges to sentences: 1) challenges to sentences as applied to an individual defendant based on “all the circumstances in a particular case” and 2) categorical challenges to sentences imposed based on the nature of the offense or the “characteristics of the offender.” See Graham, 560 U.S. at 59–61. Slough, Liberty and Heard assert their sentences are disproportionate both as applied to their situations individually and categorically to all defendants who have discharged government-issued weapons in a war zone. We begin by addressing the as-applied challenges.

When addressing an as-applied challenge, courts begin “by comparing the gravity of the offense and the severity of the sentence” based on “all of the circumstances of the case.” Id. at 59, 60. When engaging in this comparison, courts are to give “substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes.” Solem v. Helm, 463 U.S. 277, 290 (1983). Also, the imposition of a severe mandatory sentence does not in itself make a sentence unconstitutional. See Harmelin, 501 U.S. 994 (“Severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense.”); see also id. at 1006–07 (Kennedy, J., concurring in part and concurring in judgment) (“We have never invalidated a penalty mandated by a legislature based only on the length of sentence . . . .”). Thus, courts should be “reluctant to review legislatively mandated terms of imprisonment,” and “successful challenges to the proportionality of particular sentences should be exceedingly rare.” Hutto v. Davis, 454 U.S. 370, 374 (1982) (per curiam). However, the unusual circumstances of this case make it one of those “exceedingly rare” instances. 

 

D.C. CIRCUIT COURT OF APPEALS.  The opinion deals with a lot of issues. The Eighth Amendment analysis begins at page 69.

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Justice Ruth Bader Ginsburg

posted by Judge_Burke @ 16:35 PM
August 1, 2017

If you have never listened to Justice Ruth Bader Ginsburg, you should. It isn’t necessarily about legal philosophy, but rather the remarkable intellect she has.

From How Appealing: “A Conversation with Supreme Court Justice Ruth Bader Ginsburg about the 2016-17 term.” Duke University School of Law has posted this video on YouTube.

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To the Followers of this Blog

posted by Judge_Burke @ 20:34 PM
July 26, 2017

Today marks 33 years on the bench. Thanks to Governor Perpich, who appointed me; the people of Hennepin County, who elected me; family, friends, and colleagues who supported me.

The challenges to the judiciary today are serious. We need to have courage to speak about injustice, and we need to focus on making sure our courts are fair. It is not an easy task. Each generation of judges has likely claimed theirs was among the most critical of their democracy. The answer to that debate can’t be agreed upon, but what can be agreed upon is the judges in the United States and Canada have the capacity to make our courts the best they can be. Some of our excuses for why we fail are, frankly, tired and lame:  ”We simply have too many cases to do a quality job.” Volume should be viewed as one of our strengths, not as a weakness. Each case gives us the opportunity to show litigants and their supporters that there is a fair and responsive justice system. So what we need…what each judge needs…is to take a deep breath, reflect for a moment, and then rededicate ourselves to achieving excellence.

Kevin

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Is the Civil Justice System in India Speedier Than in Washington DC?

posted by Judge_Burke @ 14:30 PM
July 26, 2017

A woman who sued the Washington, D.C., Department of Corrections for sexual discrimination is still awaiting the final resolution of her lawsuit 27 years after it was filed.

The Washington Post reports:

The length of the suit filed by Deborah Jean Bryant “may set a record for the court system in the nation’s capital and is likely among the most protracted in the history of American jurisprudence.”

The case has been before nine judges; a 10th will consider her dispute over interest this week.

Bryant had claimed in her suit that she was denied a promotion because she refused the advances of her former supervisor. The Washington, D.C., Department of Human Rights and Minority Business Development ruled in Bryant’s favor, and the corrections department appealed.

The appeal lasted 11 years, and a dispute over whether Bryant was entitled to interest on her back wages lasted nine years. After she was awarded interest in 2012, Bryant claims the department miscalculated the amount.

Bryant’s lawyer, Robert Adler, told the Post that the case has dragged on because the Washington, D.C., legal system is slow-moving.

“This is not a hard case. It’s really pretty easy,” Adler said. “These people just don’t work that hard. That’s what the fact of the matter is.”

George Washington University law professor Jonathan Turley agreed that delays are a problem in government workplace cases in Washington, D.C., where a mix of administrative law judges and superior court judges preside at different stages.

“Each one of these case transfers has built into it months, even years, of delay,” he told the Post. “A litigant can find themselves ping-ponging between the court and the administrative office.”

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Thinking About Reform of Plea Bargaining

posted by Judge_Burke @ 14:30 PM
July 25, 2017

Cynthia Alkon (Texas A&M University School of Law) has posted Hard Bargaining in Plea Bargaining: When Do Prosecutors Cross the Line? (Nevada Law Journal, Vol. 17, No. 2, 2017) on SSRN.

Here is the abstract:

Well over 90 percent of all criminal cases in the United States are resolved by plea bargaining and not by trial. This means that how plea bargaining works impacts nearly every criminal defendant. However, there are few restrictions to protect defendants in the negotiating process. One serious problem is that prosecutors regularly use hard bargaining tactics such as exploding offers, threats to add enhancements, take-it-or-leave-it offers, and threats to seek the death penalty. These hard bargaining tactics contribute to the often highly coercive atmosphere of plea bargaining that can lead innocent defendants to plead guilty. Pressure to plead guilty can also lead defendants to fail to litigate issues, such as search and seizure motions. Finally, the coercive atmosphere in plea bargaining can lead defendants to accept bad deals as they try to avoid potentially much higher sentences after trial.

This article argues that the U.S. Supreme Court should limit prosecutorial hard bargaining tactics in plea negotiations to better protect defendants’ right to counsel. In 2012, the U.S. Supreme Court, in Lafler v. Cooper and Missouri v. Frye, held that there is a constitutional right to effective assistance of counsel in plea bargaining. This article argues that Lafler and Frye demand that the Court restrict prosecutorial hard bargaining behavior that interferes with defense lawyers’ ability to do their jobs and thereby deprives defendants of their constitutional right to counsel. Other areas of law, notably labor law, prohibit hard bargaining. Under the National Labor Relations Act, unions and companies are required to bargain in good faith. Courts have held that some types of hard bargaining act to undermine the representation role of the union and are, therefore, a violation of the duty to bargain in good faith. This article will suggest that one way to argue the Supreme Court should limit prosecutorial hard bargaining is that allowing unrestricted prosecutorial hard bargaining undermines the representation of counsel and thereby prevents effective assistance of counsel in plea bargaining. This article also gives specific examples of what kinds of prosecutorial hard bargaining tactics should be restricted to better protect defendants’ constitutional rights in the plea bargaining process.

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Combating Racial Bias

posted by Judge_Burke @ 14:34 PM
July 24, 2017

William Y. Chin (Lewis & Clark Law School) has posted Racial Cumulative Disadvantage: The Cumulative Effects of Racial Bias at Multiple Decision Points in the Criminal Justice System (6 Wake Forest J.L. & Pol’y 441 (2016)) on SSRN.

Here is the abstact:

Racial bias in the twenty-first century endures in the form of racial cumulative disadvantage. It exists in the criminal justice system where people of color suffer from racial biases at multiple decision points. The multiple biases accumulate to create adverse outcomes such as imprisonment for defendants of color; in capital cases, the adverse outcome is death. Defendants of color in the criminal justice system, therefore, contend not with a mere single incident of racial bias, but with multiple instances of racial biases spread among multiple actors across multiple stages that accumulate. Remedying racial cumulative disadvantage entails dismantling the school-to-prison pipeline, requiring racial impact statements to consider cumulative disadvantage effects, and abolishing the death penalty. The goal is to eradicate racial cumulative disadvantage to promote equal advantage and thereby craft a more just society.

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