Excessive Fines

posted by Judge_Burke @ 16:45 PM
November 28, 2018

SCOTUS will decide whether the excessive fines clause applies to states. Mark Walsh has this article in the December 2018 issue of ABA Journal magazine. Here is an excerpt:


Timbs’ appeal to the U.S. Supreme Court reached the justices at a time when there has been renewed attention to the potentially onerous burdens of civil fines and forfeitures.

In 2017, in a statement respecting the denial of certiorari in the case Leonard v. Texas, Justice Clarence Thomas expressed concerns about modern civil forfeiture practices.

“This system—where police can seize property with limited judicial oversight and retain it for their own use—has led to egregious and well-chronicled abuses,” Thomas wrote, adding that he was skeptical that historical forfeiture practices, which tended to arise in the realms of customs and piracy, could support “the contours of modern practice.”

Timbs has attracted support from a wide range of organizations, including the American Bar Association, the American Civil Liberties Union, the U.S. Chamber of Commerce and the Pacific Legal Foundation.

The ABA in its amicus brief told the justices about its Working Group on Building Public Trust in the American Justice System, which is addressing the concern that excessive judicial fines and fees “disproportionately harm the millions of Americans who cannot afford to pay them, entrenching poverty, exacerbating racial and ethnic disparities, diminishing trust in our justice system and trapping people in cycles of punishment simply because they are poor.”

A group of legal scholars filed an amicus brief in support of Timbs that says, “State and local governments have been levying greater and greater fines and relying heavily on forfeitures in recent years, often at the expense of people who can least afford to pay. Fines and forfeitures are punishments, but they can also make money for cities and states, which gives governments an incentive to increase these punishments to excessive levels.”

Colgan, who has signed onto the scholars’ brief in support of Timbs, says, “We only have four cases in which the Supreme Court has interpreted the excessive fines clause, so we have a lot of open questions.”


Indiana argues that there is a problem with the idea that the forfeiture of Timbs’ Land Rover was disproportionate to his fines. “In our view, the excessive fines clause is about punishment for the criminal,” says Indiana Solicitor General Thomas M. Fisher. “When you’re talking about in rem forfeiture, you’re talking about an action against the property. It’s a separate proceeding.”

The state points out that after his arrest, Timbs admitted to the police that he would use his Land Rover to pick up heroin several times per week. At the forfeiture hearing, he said that doing so put “a lot” of miles on the vehicle.

“If you are trying to conceptualize the seizure of the property as proportional to something, you have to compare it to the role the property played in the crime,” he says.

Both sides’ briefs delve heavily
into the history of the incorporation of the Bill of Rights against the states and into historical practices of fines and forfeitures. One of the state’s examples is meant to show that in rem forfeitures—legal actions directed against property instead of a person—have sometimes been quite draconian and disproportionate.

In an 1833 case, a federal court upheld the seizure of The Louisa Barbara, a 400-ton passenger vessel, because its 178 passengers exceeded a federal weight limit by one passenger.

“When we look at in rem forfeitures, we can see some harsh consequences in history,” Fisher says. “Yet no court has ever suggested there were any constitutional barriers to that.”

Lawyers for Timbs contend that Indiana is ignoring some more recent history. In Austin v. United States, in 1993, the Supreme Court held that forfeitures of property used in certain drug crimes authorized by two federal statutory provisions were “monetary fines” subject to the excessive fines clause.

By arguing that forfeitures aren’t fines, “the state attempts to relitigate Austin,” says Wesley P. Hottot, one of Timbs’ lawyers with the Institute for Justice, an Arlington, Virginia-based public interest legal organization.

The court has incorporated the Eighth Amendment’s other two provisions against the states—those barring excessive bail and cruel and unusual punishment. “The Supreme Court should finish the job and require the states to incorporate the excessive fines clause as a check against the government’s power to punish,” Hottot says.

Timbs has served his house arrest and probation, and he says he is now clean of using drugs. He drives some 35 miles each day to his factory job in Huntington, Indiana, where he is a machinist in a John Deere plant.

He borrows his aunt’s car. It’s a 2012 Dodge Avenger, a modest sedan, since his Land Rover is still in possession.

“I’ve been made aware that if I get it back, it might not be in the best condition,” Timbs says. “I wrote that truck off a long time ago.”

But he hasn’t written off the legal battle he is waging. “I feel like I stand for something,” Timbs says. “I’m coming out of a life of addiction where I didn’t mean a lot to anyone. Now I feel like I’m doing something good with this.”


What Happens if a Juror Lies in Voir Dire?

posted by Judge_Burke @ 21:08 PM
November 27, 2018

From the Federal Criminal Appeals Blog:

In many jurisdictions, jurors receive pretrial questionnaires that let parties and attorneys get to know them.  But what happens when a juror forgets or lies in response to some of the questions and the inaccurate responses are discovered after trial?  That was the question for the First Circuit in United States v. French.

Malcolm French owned approximately 80,000 acres of land in Washington County, Maine.  Rodney Russell was an office manager of sorts.  It turns out people were using pieces of Mr. French’s land to grow considerable amounts of marijuana.  Mr. French and Mr. Russell both claimed they didn’t know about the farming operation and were thus innocent.  A jury disagreed and found them both guilty.

Shortly after sentencing, defense counsel reported that they had just learned that a prisoner housed in the Somerset County Jail with another co-defendant told the co-defendant that Juror 86, who sat on the jury before which the case was tried, was the mother of a small-time marijuana trafficker.

The problem was that prior to trial, Juror 86, along with the other prospective jurors, filled out a questionnaire, which included the following prompt:

  1. a.) Please describe briefly any court
    matter in which you or a close family member
    were involved as a plaintiff, defendant,
    witness, complaining witness or a victim.
    [Prospective jurors were given space to write]

b.) Was the outcome satisfactory to you?
[Prospective jurors were given “yes” and “no”
check boxes here]

  1. c) If no, please explain. [Prospective jurors
    were given space to write]

Juror 86 wrote “n/a” after part (a), and left parts (b) and (c) blank. She also did not complete the second page of the questionnaire, which contained six additional prompts and a space to sign and declare under penalty of perjury that the prospective juror had answered all the questions truthfully and completely. And when jury selection began, the magistrate judge asked the prospective jurors a series of other questions Juror 86 should have answered, but Juror 86 remained silent.

In a motion for a new trial filed a week after sentencing, defendants argued that Juror 86’s answers to the questionnaire and her lack of a response to oral voir dire questions amounted to dishonest answers to material questions, and that had the answers been honest, there would have been a valid basis for a challenge for cause. They also asked for an evidentiary hearing to question Juror 86 about her answers. The district court denied the motion in all respects.  Mr. French and Mr. Russell appealed to the First Circuit.

The First Circuit reversed, explaining that the defendants came forward with factual information fairly establishing that Juror 86 likely gave an inaccurate answer to question 3 on the written questionnaire.  Further, the First Circuit held that the uncontested facts submitted by defendants also made it “quite likely — although not certain — that the juror’s inaccuracy was knowing.”  Defendants also showed that the correct answer to question 3 may well have been quite relevant to assessing the juror’s ability to fairly sit in judgment in this case. To wit, the mother of a drug user arrested for dealing to support his drug habit might have some strong thoughts about those who produce the drugs.

According to the First Circuit, the “defendants’ initial burden is only to establish that their claim of juror misconduct is ‘colorable or plausible.’”  Defendants “need not show at the outset that their claim is so strong as to render contrary conclusions implausible. Nor need the defendants support their claim initially with testimony from the juror.”  In the First Circuit, “counsel cannot even question the juror until the court gives permission.” See United States v. Kepreos, 759 F.2d 961, 967 (1st Cir. 1985). As a result, a court-supervised investigation aimed at confirming and then exploring further Juror 86’s apparent dishonesty was required.  The First Circuit vacated the denial of defendants’ motion for new trial and remanded for further proceedings on the motion for new trial.  Presumably, that would be an evidentiary hearing.  Mr. French and Mr. Russell are by no means off the hook, but for now, they have hope for a new trial.



Are There Lessons to Be Learned in Kentucky and Virginia?

posted by Judge_Burke @ 22:52 PM
November 26, 2018

Judges and policy makers at the state and local level should take great care in employing algorithmic risk assessment tools.

Read Megan T. Stevenson and Jennifer L. Doleac’s work, The Roadblock to Reform, for the American Constitution Society. Here is the summary:

Algorithmic risk assessment tools have become a popular element of criminal justice reforms, often with the explicit goal of reducing incarceration rates. The hope is that these data-driven tools will standardize decisions about pretrial detention and sentencing, and ensure that only the most high-risk offenders are incarcerated. However, the effects of these tools depend crucially on how judges use them.

This brief considers judicial reforms in Kentucky and Virginia as case studies of the effects of algorithmic risk assessment tools in practice. We show that, in both states, reforms aimed at reducing incarceration for low- risk offenders had little to no impact on incarceration rates. While these tools clearly recommended less incarceration for a large share of defendants, they had little effect on judges’ incarceration decisions. However, there is tremendous variation across judges in how closely they follow the risk assessment recommendations. We discuss what these results mean in terms of how to affect meaningful criminal justice reform, including ways citizens and policymakers can align judicial incentives so that reforms have their intended effects.


Libby Hines is Not Just a Michigan Judge, She is an American Judge

posted by Judge_Burke @ 14:00 PM
November 23, 2018

Michigan judge known for groundbreaking work in domestic violence receives William H. Rehnquist Award.

Chief Justice of the United States John G. Roberts Jr. presented the William H. Rehnquist Award for Judicial Excellence to Michigan Judge Elizabeth “Libby” Hines on Nov. 15 in Washington, D.C. Judge Hines, a district court judge in Ann Arbor, is the 23rd recipient of the Rehnquist Award, the most prestigious award presented to a state court judge.

“The Rehnquist Award was created for judges like Judge Hines,” NCSC President Mary McQueen told the crowd of some 250 guests from around the country gathered in the Great Hall of the U.S. Supreme Court. “Judges who not only make their mark in the courtroom, but who also make significant differences in the lives of those who come before them.”

Judge Hines has shaped the way many courts handle domestic violence cases. In 1999, she was appointed to represent her court on an executive committee that managed an initiative sponsored by the U.S. Department of Justice Office on Violence Against Women, one of only three sites in the country selected to find what court practices work best in domestic violence cases. Today, her court serves as a national resource for the handling of such cases.

“Judge Hines makes a difference by creating opportunities, opening doors and reimagining courts,” McQueen said. “She helps defendants turn despair into hope.”

Addressing the crowd, Judge Hines said one reason the Rehnquist Award is so meaningful is because it shines light on the challenging work trial court judges face daily. “With this award, the National Center recognizes and values the work that we do in the lower courts, “she said. “It is difficult to put into words how much this award means to me. I genuinely love the law. I’ve been handling criminal cases for more than 40 years, first as a prosecutor, now as a judge … To be recognized by NCSC for the work I have been privileged to do – and to meet the Chief Justice of the United States – is absolutely thrilling.”

Judge Hines was elected to Michigan’s 15th Judicial District Court bench in 1992. She currently serves as co-chair of the American Judges Association’s Domestic Violence Committee. She has served on the NCSC Board of Directors and was awarded the first Judicial Excellence Award by the Michigan District Judges Association. She received her bachelor’s degree from the University of Michigan and her juris doctorate from the University of Michigan Law School.



Consent Searches

posted by Judge_Burke @ 15:00 PM
November 22, 2018

Susan A. Bandes (DePaul University – College of Law) has posted Police Accountability and the Problem of Regulating Consent Searches (University of Illinois Law Review, Vol. 2018, 2018) on SSRN. Here is the abstract:

Consent doctrine rests on a legal fiction. It protects a broad realm of police conduct not because people in fact feel free to withhold consent, but because it is deemed essential to law enforcement. The assumption that consent is voluntary has been widely criticized, but the other assumption undergirding consent doctrine — that consent searches are essential to good police work — has received less attention. I argue that good police work is too often narrowly equated with finding contraband and making arrests, and that we need a better metric for determining whether “too much” evidence would be lost and “too many” searches would be forgone if consent rules were reformed. Criteria should include not only efficiency at combating crime but also safeguarding public and police safety, promoting fairness and equal treatment of civilians, contributing to improved police-community relations, and providing transparency and accountability. Evaluating and improving consent doctrine also requires addressing the question of which institutions are best suited to gather relevant data and to implement reform.

Consent doctrine provides fertile ground for an evaluation of various institutional approaches to supervising police conduct. It provides an opportunity to examine the scaffolding: the built-in advantages and disadvantages of various institutional approaches to police reform. At the same time, it highlights the impossibility of considering these institutional questions without reference to concrete context. In the realm of policing, noticeable shifts in governmental approaches and priorities are often visibly tied to the change in political regimes. These fluctuations illustrate the perils of treating each institution’s role as fixed, but they also highlight the essential role of each institution, as well as the ways in which some institutions can step up as others step back. I will approach the regulation issue by considering three intertwined questions: First, what kinds of regulation will effectively limit police misuse of consent searches? Second, what data will help illuminate the nature and scope of the problem? And third, what entities can best achieve these regulatory and data-gathering goals?


Did Broken Widows Make A Problem Worse?

posted by Judge_Burke @ 22:51 PM
November 21, 2018

The theory of broken windows as a crime strategy seemed on the surface to make sense…..by concentrating on little crimes, the result would be a decrease in major crimes. But did it make the problem worse?

In her recent book, Misdemeanorland, Yale Law School Professor Issa Kohler-Hausmann argues that, under “broken windows”, lower courts have slid into a mode of processing cases that prioritizes speed and efficiency over justice. She shows how the policing experiment has subjected hundreds of thousands of people to surveillance and asserts that the lower reaches of the criminal justice system operate as a form of social control.


New Jersey Drunk Driving Cases Might Be Dismissed

posted by Judge_Burke @ 15:26 PM
November 20, 2018

By Associated Press:

A ruling issued Tuesday by the New Jersey Supreme Court could cause more than 20,000 drunken driving convictions to be vacated.

The justices unanimously found that criminal charges pending against a state police sergeant made breath-testing device test results from five counties inadmissible as evidence.

Sgt. Marc Dennis was in charge of calibrating the devices, and authorities have alleged that he skipped a required step in the calibration process. Dennis has denied any wrongdoing and has pleaded not guilty to records tampering and other charges.

The court’s decision means that as many as 20,667 DWI convictions could now be challenged, according to state authorities and the lawyer for the now-dead plaintiff who brought the case that the court ruled on.

View Full Story From NBC News/AP


Digital Discovery In Criminal Cases

posted by Judge_Burke @ 15:38 PM
November 19, 2018

There has been a lot of very good judicial education focusing on digital discovery in civil cases. There are great template orders available. But what about digital discovery in criminal cases?

Jenia Iontcheva Turner (Southern Methodist University – Dedman School of Law) has posted Managing Digital Discovery in Criminal Cases (Journal of Criminal Law and Criminology, Vol. 109, No. 2, 2019, Forthcoming) on SSRN. Here is the abstract:

The burdens and challenges of discovery—especially electronic discovery—are usually associated with civil, not criminal cases. This is beginning to change. Already common in white-collar crime cases, voluminous digital discovery is increasingly a feature of ordinary criminal prosecutions.

This Article examines the explosive growth of digital evidence in criminal cases and the efforts to manage its challenges. It then advances three claims about criminal case discovery in the digital age. First, the volume, complexity, and cost of digital discovery will incentivize the prosecution and the defense to cooperate more closely in cases with significant amounts of electronically stored information (ESI). Second, cooperation between the parties will not be sufficient to address the serious challenges that digital discovery presents to the fair and accurate resolution of criminal cases. And third, for that reason, digital discovery in criminal cases needs to be regulated more closely.

In crafting such regulation, courts and legislators can build on the civil procedure model, which has grappled with the challenges of e-discovery for over two decades. The civil procedure experience suggests that cooperation between the parties, active judicial involvement, and more detailed rules are essential to the effective management of digital discovery.

The civil litigation model has its limitations, however, and policymakers must chart new ground to address some of the unique demands of criminal cases. Recognizing the significant resource and bargaining disparities in criminal cases, judges need to limit certain negotiated waivers of discovery so as to prevent abuse. Where the interests of justice demand it, courts may also need to help defendants obtain access to digital discovery in detention, gather digital evidence from third parties, and receive digital files in a format that allows adequate review for exculpatory material. These and other measures can help ensure that the cost and complexity of digital discovery do not undermine the fairness and accuracy of criminal proceedings.


What Do Americans Think Of Crime?

posted by Judge_Burke @ 16:10 PM
November 16, 2018

The Hill, John Bowden, reports:

The percentage of Americans who say that crime is an extremely or very serious problem in the U.S. dropped to under 50 percent in 2018, the first time respondents have been below that threshold since 2005, according to a Gallup poll.

Forty-nine percent of those surveyed said that the problem of crime was extremely or very serious, a drop of 10 percent from last year and one of the sharpest decreases on record.The percentage of Americans who say crime is increasing nationwide remains high at 60 percent, but that number is an 8-point drop from 2017 and the lowest percentage since 2004, according to Gallup’s survey.

When it comes to local crime, Americans are more optimistic. 42 percent of poll respondents said that crime was dropping in their area, compared to 39 percent who said that it was rising. This was the first year since 2001 that more Americans have said that crime was decreasing in their local area than increasing.

Nine percent of respondents said that crime was a very serious or extremely serious problem in their areas, the first time that rating has dropped into single digits since 2004, according to Gallup.

Crime rates have been decreasing nationally since the 1990s, but Americans’ perception of nationwide crime has not always followed. Pessimism about nationwide crime peaked in 2009, when 79 percent said that crime was increasing despite a fourth year in a row of the FBI’s violent crime rate dropping.a

Gallup’s poll contacted 1,019 adults nationwide between Oct. 1-10. The survey’s margin of error is plus or minus 4 percentage points.


The Challenge of “Evidenced Based Sentencing”

posted by Judge_Burke @ 15:48 PM
November 15, 2018

It has been part of a revolution in the criminal justice system. Decisions are not made based upon judgement but statistically based.

While the catch phrase “evidenced based” is hard to argue with, the challenge is, perhaps, that there is junk science driving the evidence.

Judgments can suffer from implicit bias.

But then there is this. Melissa Hamilton (University of Surrey School of Law) has posted The Biased Algorithm: Evidence of Disparate Impact on Hispanics (56 AM. CRIM L. REV. Forthcoming) on SSRN. Here is the abstract:

Algorithmic risk assessment holds the promise of reducing mass incarceration while remaining conscious of public safety. Yet presumptions of transparent and fair algorithms may be unwarranted. Critics warn that algorithmic risk assessment may exacerbate inequalities in the criminal justice system’s treatment of minorities. Further, calls for third party auditing contend that studies may reveal disparities in how risk assessment tools classify minorities. A recent audit found a popular risk tool overpredicted for Blacks.

An equally important minority group deserving of study is Hispanics. The study reported herein examines the risk outcomes of a widely used algorithmic risk tool using a large dataset with a two-year followup period. Results reveal cumulative evidence of (a) differential validity and prediction between Hispanics and non-Hispanics and (b) algorithmic unfairness and disparate impact in overestimating the general and violent recidivism of Hispanics.