Decriminalizing Childhood

posted by Judge_Burke @ 15:30 PM
March 6, 2018

Andrea Dennis (University of Georgia School of Law) has posted Decriminalizing Childhood (Fordham Urban Law Journal, Vol. 45, 2018) on SSRN.

Here is the abstract:

Even though the number of juveniles arrested, tried and detained has recently declined, there are still a large number of delinquency cases, children under supervision by state officials, and children living in state facilities for youth and adults. Additionally, any positive developments in juvenile justice have not been evenly experienced by all youth. Juveniles living in urban areas are more likely to have their cases formally processed in the juvenile justice system rather than informally resolved. Further, the reach of the justice system has a particularly disparate effect on minority youth who tend to live in heavily-policed urban areas.

The original concept of the juvenile justice system consisted of a singular, informal juvenile court focused on rehabilitating youthful offenders engaged in criminal and noncriminal conduct to help them become productive citizens.

The original system has been replaced by a network of juvenile, criminal, and specialty courts, any one of which may adjudicate a child’s court case. Once juveniles enter this complex system, many negative legal impacts can occur, including lengthy periods of community supervision or incarceration and substantial fines and fees. Socially, court-involved youth are more likely to reoffend, experience physical or mental health problems, have poor educational outcomes, and have difficulty in the job market in the future.

This Article considers legislative decriminalization of juvenile misconduct, an underutilized method for juvenile justice reform. Decriminalization can prevent youth from entering the juvenile justice system and the problems that stem from system contact. This Article endeavors to begin a conversation among youth scholars, advocates, and policymakers about decriminalization as a mechanism for reforming the juvenile justice systems in the United States.


Harmless Error

posted by Judge_Burke @ 15:28 PM
March 5, 2018

There are frankly some very basic problems with harmless error. Too often no one remembers that there was error and the “mistake” is repeated. More importantly, even trial judges who sat in the courtroom and heard the evidence can have a difficult time predicting what a jury might do, let alone appellate judges who never actually heard and watched the testimony unfold.

So, maybe we should think about how often we use harmless error. Daniel Epps (Washington University in St. Louis – School of Law) has posted Harmless Errors and Substantial Rights (Harvard Law Review, Forthcoming) on SSRN.

Here is the abstract:

The harmless constitutional error doctrine is as baffling as it is ubiquitous. Although appellate courts rely on it to deny relief for claimed constitutional violations every day, virtually every aspect of the doctrine is subject to fundamental disagreement and confusion. Judges and commentators sharply disagree about which (and even whether) constitutional errors can be harmless, how to conduct harmless-error analysis when it applies, and, most fundamentally, what harmless constitutional error even is-what source of law generates it and enables the Supreme Court to require its use by state courts. This Article offers a new theory of harmless constitutional error, one that promises to solve many of the doctrine’s longstanding mysteries. There is widespread consensus that harmless constitutional error is a remedial doctrine, in which the relevant question is the appropriate remedy for an acknowledged violation of rights. But harmless error is in fact better understood as an inquiry into the substance of constitutional rights: a purported error can be harmless only if the defendant’s conviction was not actually obtained in violation of the defendant’s rights. That approach can help solve the doctrine’s longstanding riddles. It explains why harmless error is binding on state courts; it clears up confusion about the relationship between the doctrine and statutory harmless-error requirements; it shows which errors can never be treated as harmless without effectively being eliminated; and it provides useful guidance for how courts should conduct harmless-error analysis where it applies. Most importantly, it reflects a more realistic understanding of the right-remedy relationship that makes it harder for courts to surreptitiously undermine constitutional values.


What Should a Judge Do When You See Ineffective Assistance of Counsel?

posted by Judge_Burke @ 15:30 PM
March 2, 2018

The answer to what a judge should do when you see or perceive ineffective assistance of counsel is sometimes not easy for judges. Intervening can lead to the retort, “Judge, I do not mind your trying my case, but please do not lose it.” Yet saying or doing nothing frankly can lead to an unjust result or a wrongful conviction.  

Peter A. Joy (Washington University in St. Louis – School of Law) has posted A Judge’s Duty to Do Justice: Assuring the Accused’s Right to the Effective Assistance of Counsel (Hofstra Law Review, Vol. 46, No. 139, 2017) on SSRN.

Here is the abstract:

Every judge has a duty to do justice, which is found not only the oath the judge takes, but also in the Code of Judicial Conduct. The American Bar Association (ABA) Criminal Justice Standards Regarding the Special Functions of the Trial Judge provides more specific guidance including the responsibility to safeguard the rights of the accused and the public’s interest in the fair administration of criminal justice.

I contend that a trial judge needs to be committed to a duty to do justice by ensuring the accused’s right to effective assistance of counsel, especially in light of the excessive caseloads and inadequate resources for state public defenders and other publicly provided defense lawyers. Instead of continuing to pigeon-hole ineffective assistance of counsel claims as a post-trial inquiry, there are some circumstances when a trial judge’s duty to do justice requires an inquiry into whether defense counsel is providing effective assistance of counsel at the trial level.

In this article, I begin by analyzing resistance to recognizing ineffective assistance of counsel at the trial level and in post-conviction proceedings. Next, I examine the crises in public defense and how case overloads and funding practices for public defense create disincentives to effective assistance of counsel. I then analyze how the rights of the accused differ when the accused has a publicly provided lawyer compared to privately retained counsel. In the next part of the article, I describe the situations that trigger a trial judge’s duty to conduct an effective assistance of counsel hearing, and I proceed to recommend both the type of hearing and the standard the judge should apply in evaluating counsel’s effectiveness. I conclude by arguing that to do justice a trial judge must ensure the accused’s right to the effective assistance of counsel.


From Professor Doug Berman’s Sentencing Law & Policy blog:

Former federal judge explains how severe sentencing and mandatory minimums prompted his resignation


Last year I remember reading this local article about former US District Judge Kevin Sharp leaving the federal bench after only six years.  The former judge’s complaints about mandatory minimum sentencing realities were partially spelled out in that article, but now I see this notable new Cato piece titled “Powerless on the Bench” which reprints Sharp’s accounting for his decision.  I recommend the piece in full, and here are excerpts:

Like a lot of judges who take the bench, I had limited experience in criminal law.  Criminal law is fairly simple — much simpler than the tax code or some of the other things that I had done.  But it soon became the hardest thing I did on the bench.  In civil cases, my rulings generally concerned money.  But in criminal cases, when I said the “sentence is imposed as stated,” somebody was placed in handcuffs and led away by a U.S. marshal.

Early on, I sentenced a young man, Antonio, who was 27.  He was charged as a felon in possession of a firearm.  He had been convicted of two armed robberies at 17 years old.  At 27, Antonio is doing what we all hope a criminal defendant does after being convicted: he gets a job.  He is in contact with his family.  He does not do drugs . He does not drink.  But Antonio had been doing one thing that he should not have been.

Antonio was driving down the street and, without being too graphic, he and his girlfriend were engaged in an activity that caused him to cross slightly over the double-yellow line. The police saw it and pulled him over.  The police suspected his girlfriend was a prostitute, so they split Antonio and his girlfriend up and asked them questions. The police realized based on her answers that she in fact was Antonio’s girlfriend. Then, the police said, “OK, we are going to let you go.  Oh, by the way, do you mind if we search your car?” Antonio, forgetting that he had an unloaded pistol under the front seat of his car, responded, “No, go ahead.”

Antonio was charged with being a felon in possession of a firearm.  Because he was convicted as an adult in his prior crimes, his mandatory minimum sentence was 15 years.  I read his case and thought this could not be right.  Fifteen years? What are “mandatory minimums”?  I did not fully understand what they were at the time.  I spent the next several days trying to figure out how to get around the minimum sentence — it cannot be done.

Regrettably, I did what I had to do.  I sentenced Antonio to 15 years.  I thought to myself, “What in the world are we doing?  Why would the government take away my ability to fashion a fair sentence?  I know what a judge is supposed to consider in determining how to fashion a sufficient sentence.  What I have done is in no way, shape, or form an appropriate sentence.”

Several years later, I had the same conversation with myself.  This time, the case involved a 22-year-old kid, Chris Young.  He was caught up with a group of members of the Vice Lords, a gang known for running cocaine and crack through middle Tennessee.  Chris was not a member of this gang.  He was an aspiring rapper who would hang out with members of the Vice Lords because one of the gang members had a studio. He was occasionally asked to make crack, but he did not know how.

Chris was arrested as part of a 30-person indictment for drug conspiracy.  Chris was such a minor player in the drug conspiracy — he did not even know how to make crack.  I think the only reason the DEA arrested him was because he happened to be at a gas station when they took down the Vice Lords’ leader.  He was at the wrong place with the wrong group at the wrong time.  The only evidence showing Chris’s connection to the gang were tapes from their wiretaps where Chris is talking to the gang’s leader about how he cannot figure out why the crack he has cooked did not turn out right.  The leader gets frustrated and finally says, “I’ll just come over and do it myself.”  That was basically the extent of it.

The prosecutor told Chris, “You can plead guilty, and we will give you twelve years.”  Chris is 22 and thinks, “12 years, no! I’m so minor in all of this, I will go to and win at trial.”  His lawyer convinces him that he should not go to trial, given his two prior drug convictions (one for less than half a gram of crack, which is about a sugar packet of crack) and the penalty he could face if convicted again — a mandatory life sentence.  At this point, the prosecutor changes his mind and says, “12 years was last week’s price — this week’s price is 22 years, and if you turn this down, next week’s price may be higher.”  A 22-year-old, Chris thought, “22 years is life! I’ll take my chances at trial.” Only three people of this 30-person group arrested, by the way, went to trial.  Everybody else pled guilty.  At trial, these three people, who happened to also be the lowest members of this conspiracy, all got life in prison.  Every single one of them.  Yes, the Vice Lords were selling a lot of drugs, but not Chris, and not the other two defendants who also decided to go to trial.  They all are behind bars for life.

Chris Young grew up in the projects, did not know his father, and saw his mother in and out of jail for her drug addiction.  When his mother had been sent to jail, Chris and his brother would stay in the house without electricity, water, or money for food.  They would eat out of garbage cans or ask neighbors to give them food.  When they were tired of the way that they smelled, they asked neighbors if they could take a shower.  This is how Chris grew up.  His brother eventually died.  It is unclear as to whether he committed suicide or was murdered.  I could not consider any of his hardships.  I could only look at how he was charged, and his charges led to his mandatory life sentence….

Members of Congress, in their desire to be elected and reelected, often show how tough on crime they can be, and they say, “Look, mandatory minimums are necessary so that we can take discretion away from the judges.”  But these legislators have not taken away discretion, they have just moved it to the prosecutor, who has a dog in the hunt.  If somebody said, “Well wait a minute, let’s not allow the prosecutor to do it but the defense counsel,” they would say “You’re insane!  Why would you do that?”  My position, then, is why would you give discretion to the prosecutor?

Because of the way that I grew up, as I saw criminal defendants come through my court, I would think about how I may have gone to high school or have worked at an oil refinery with these people.  These were real people who faced real consequences.  And, despite my position, I was told what to say.  I was just a messenger.  And I thought to myself, “Somebody else can be a messenger.  If real change is going to be made, then I need to do that on the other side of the bench.  Sure, I am giving up a lifetime appointment, but am I going to walk in here every day and do things that I do not think are just? The government can pay me for life to do that, but that is not enough for me.  The government does not pay me enough for this — I cannot be paid.


Juror Impeachment

posted by Judge_Burke @ 15:30 PM
February 28, 2018

Jason Koffler has posted What Comes Next: Expansion of the Pena-Rodriguez Racial Bias Exception to the No-Impeachment Rule on SSRN.

Here is the abstract:

In the recent case of Pena-Rodriguez v. Colorado, the Supreme Court announced a constitutional exception to the juror no-impeachment rule–a traditional evidentiary rule barring jurors from testifying about what occurred during jury deliberations in an effort to impeach the verdict. Under this exception, where a juror makes a clear statement evincing that he or she convicted a criminal defendant on the basis of racial stereotypes or animus, the trial court may consider evidence of such juror statements. While the Court framed its decision as a necessary means of protecting the Sixth Amendment right to a fair and impartial trial, the Court discussed at length the need to rid the jury system of racial bias and prejudice, seemingly placing the case within a long line of cases intended to eliminate the impact of racism in the criminal justice system. As such, the Court limited its holding, and the newly created exception, strictly to instances of racial bias. 

While the Supreme Court limited the Pena-Rodriguez exception to instances of only racial bias, judges and commentators alike have questioned whether such a limitation is possible in practice.

Justice Alito noted as much in his dissent, arguing that there is no principled basis for limiting this exception to race. This Note explores this question: will, and should, the Pena-Rodriguez exception remain limited to race. First, this Note analyzes the jurisdictions in which a bias exception had already existed before Pena-Rodriguez to determine whether these exceptions have expanded beyond race to date. Next, this Note examines the related doctrinal area of voir dire peremptory strikes to determine whether the expansion of a race-only Batson exception to other types of prejudice can shed light on Pena-Rodriguez’s potential evolution. Finally, using the states’ experience with these exceptions and the Court’s own past experience under Batson, this Note demonstrates that the narrow exception created by Pena-Rodriguez is likely to, and should, expand beyond race, and suggests that, in addition to procedural barriers, incorporation of Fourteenth Amendment principles can ensure the no-impeachment rule continues to serve its purpose as a safeguard of the jury system.


Just Who is that Picture Of?

posted by Judge_Burke @ 15:30 PM
February 27, 2018

If you go in many courthouses in Canada and the United States, you will see portraits of judges. Many of them are old pictures, and some of them are paintings. Have you ever wondered, who are these people? Well, as this Associated Press story illustrates, we all too frequently have no clue who these people are. 

Massachusetts court: Do you know this justice?


BOSTON — A man’s portrait has hung for years outside the chambers of the chief justice on Massachusetts’ highest court. The problem? No one knows who he is.

It’s a mystery that has stumped officials at the Supreme Judicial Court for more than a decade. Now they’re turning to the public for help in cracking the case of the unknown justice.

“I basically said, listen, if we have not been able to identify it, why don’t we set loose the public to see if they can put on their Sherlock Holmes’ hats and help us to track down who this elusive and mysterious justice is?” Chief Justice Ralph Gants, who has served on the court since 2009, said in an interview.

Officials say they believe the man may have sat on the bench sometime between 1780 and 1820.

Gants said they have essentially ruled out that the man was a chief justice, but say he must have been an associate justice because they can’t imagine why else his portrait be in the court, which traces its roots to 1692.

Even the artist remains unknown.

Clifford Allen, director of education and public programs for the court, said officials years ago attempted to identify all the portraits of the retired justices and put them on a CD. The anonymous painting was the only one they couldn’t figure out, he said.

Since then, extensive research has turned up few clues.

Allen said he has tried matching the portrait with all of the justices who served during that era. He even ran the portrait through the Google program that matches a persons’ likeness to a painting, he said.

The high court says the person that comes forward with reliable authentication of the portrait will be invited to the court to stand with Gants as he unveils a plaque bearing the mystery justice’s name. They’ll also get a guided tour of the John Adams Courthouse.​


Forensic Science

posted by Judge_Burke @ 15:30 PM
February 26, 2018

Jonathan J. Koehler (Northwestern University – Pritzker School of Law) has posted How Trial Judges Should Think About Forensic Science Evidence (To Appear in Judicature Spring 2018, Vol. 102, Number 1) on SSRN.

Here is the abstract:

It is undeniable that there are serious problems with the presentation of forensic science evidence in U.S. courtrooms. Comprehensive studies by scientific bodies find that many forensic sciences have not been validated and none have provided sufficiently rigorous scientific evidence that supports a claim of low rates of error. However, trial courts and appellate courts have largely ignored these problems and have done nothing to motivate forensic scientists to improve the scientific quality of their courtroom testimony. This paper provides trial judges with guidance on how they should think about and evaluate the reliability of forensic science evidence.


The Blurring Line Between Civil & Criminal Mental Disability Law

posted by Judge_Burke @ 15:30 PM
February 23, 2018

Michael L. Perlin, Deborah Dorfman and Naomi Weinstein (New York Law School, Center for Public Representation and New York State Unified Court System – Mental Hygiene Legal Service) have posted ‘On Desolation Row’: The Blurring of the Borders Between Civil and Criminal Mental Disability Law, and What It Means For All of Us on SSRN.

Here is the abstract:

One of the great tensions of mental disability law is the unresolved, trompe d’oeil question of whether it is a subset of the civil law, of the criminal law, or something entirely different. The resolution of this question is not an exercise in formalism or pigeonholing, but is critical to an understanding of the future direction of mental disability law, the deeper meaning of US Supreme Court cases and important state legislative initiatives, and the whole array of hidden issues and agendas that lurk under the surface of mental disability law-decision making. 

As mental disability law has matured, a dual system appeared to have fallen into place: in civil cases, a patient was generally entitled to a relatively broad panoply of procedural and substantive due process rights in involuntary civil commitment and institutional rights decision making; on the other hand, the Supreme Court has made it explicit that defendants convicted of crimes would have fewer substantive treatment rights, specifying that at least in the area of the right to refuse treatment, “penological interests” would “trump” fundamental civil libertarian interests, and that insanity acquittees could have fewer substantive and procedural due process rights at retention and review hearings than would civil patients. 

Yet, subsequent important developments cast new light on this separation and call into question the future of a two-tiered mental disability law system: 

• the proliferation of so-called assisted outpatient treatment (AOT) statutes, of which New York’s Kendra’s Law is the most well-known example; 
• the expansion of sexually violent predator acts (SVPA), of which New Jersey’s Megan’s Law is often seen as the exemplar but which have been subject to Supreme Court scrutiny in cases from other jurisdictions such as Kansas v. Hendricks, Seling v. Young, Crane v. Kansas, and United States v. Comstock,
• the policy implications of a system that provides no meaningful continuity of care, resulting in large numbers of persons continually “shuttling” between jails (or prisons) and mental hospitals,
• and the sanctioning of the imprisonment of insanity acquittees in prison facilities. 

These overlaps blur the borderline between civil and criminal mental disability law in very troubling and problematic ways, and threaten to make this area of the law even more pretextual than it currently is. Laws such as these enforce social control in punitive ways under the guise of the beneficence of civil commitment. Although the universes of individuals subject to statutes such as Kendra’s Law or Megan’s Law, those who are shuttled from jail to hospitals to the street for minor crimes, or those who have been found not guilty by reason of insanity appear quite different – in the first instance, persons not subject to the inpatient involuntary civil commitment power but who may be in danger of deterioration in the absence of forced treatment; in the second, persons who have been charged and/or convicted of violent sexual offenses who are targeted as potentially recidivistic pedophiles; in the third, persons charged with crimes that basically involve “nuisance activities,” and, in the fourth, individuals who have been found not responsible for the antecedent criminal action – there are important, and troubling, points in common in the structures of these kinds of laws. Moreover, they all demonstrate comfort with a system in which many functions of civil and criminal mental disability law merge. Remarkably, until now, virtually no attention has been paid to this phenomenon.

In this paper, we will first trace the development of the two-tiered mental disability law system (with a special focus on the right to refuse treatment). We will then review developments in AOT law (focusing on Kendra’s Law), SVPA law, continuity of care issues, and the imprisonment of insanity acquittees, and the blurring effects of each area and implications for the rest of mental disability law. We will next discuss those “blur” areas that may serve to, optimally, limit pretextuality (the creation and expansion of mental health courts, and the application of the Americans with Disabilities Act to cases arising out of the criminal justice system). We will then look at these issues from the perspectives of therapeutic jurisprudence, and then conclude with some modest recommendations.


Professor Doug Berman at Sentencing Law & Policy blog links to and posts report excerpts on Criminal Justice Reform Trends.

From the excerpt:

The United States is a world leader in incarceration rates and keeps nearly 7 million persons under criminal justice supervision. More than 2.2 million are in prison or jail, while 4.6 million are monitored in the community on probation or parole. Changes in sentencing law and policy, not changes in crime rates, have produced the nation’s high rate of incarceration. Scaling back incarceration will require changing policy and practice to reduce prison populations, address racial disparity, and eliminate barriers to reentry. In recent years a number of states have enacted reforms designed to reduce the scale of incarceration and impact of the collateral consequences of a felony conviction. This briefing paper describes key reforms undertaken in 2017.


Have You Ever Had Regrets?

posted by Judge_Burke @ 15:30 PM
February 21, 2018

Early in my career I got a call from a new colleague. He had no experience in criminal law and he was troubled by a sentence he imposed. He had sent a man to the workhouse for 60 days for stealing one pack of cigarettes. Although the man had many prior thefts, my colleague felt he had gone too far. My response was:  you can fix it.

But, there are times when you cannot fix it. In the cigarette case, Minnesota law at the time allowed a judge to fix it…but, had it been a prison sentence, it could not have been fixed.

Reflecting on what we do and the consequences we impose on others is a path toward improvement as a judge. Evelyn Baker, a retired Missouri circuit court judge, has this opinion piece in The Washington Post under the headline “I sentenced a teen to die in prison. I regret it.”

Here are excerpts:

“You will die in the Department of Corrections.” Those are the words I spoke as a trial judge in 1997 when I sentenced Bobby Bostic to a total of 241 years in prison for his role in two armed robberies he committed when he was just 16 years old.

Bostic and an 18-year-old friend robbed a group of six people who were delivering Christmas presents to a needy family in St. Louis.  Two shots were fired.  A bullet grazed one person, but no one was seriously injured.  The two then abducted and robbed another woman — who said she was groped by Bostic’s accomplice before the two released her. They used the money they stole from her to buy marijuana.  Despite overwhelming evidence against him, Bostic chose to go to trial.  He was found guilty.

Bostic had written me a letter trying to explain his actions, but despite this, he had not, in my view, demonstrated sufficient remorse.

I told him: “You are the biggest fool who has ever stood in front of this court. . . . You made your choice. You’re gonna have to live with your choice, and you’re gonna die with your choice. . . . Your mandatory date to go in front of the parole board will be the year 2201.  Nobody in this room is going to be alive in the year 2201.”

I thought I was faulting Bostic for his crimes.  Looking back, I see that I was punishing him both for what he did and for his immaturity.  I am now retired, and I deeply regret what I did.  Scientists have discovered so much about brain development in the more than 20 years since I sentenced Bostic.  What I learned too late is that young people’s brains are not static; they are in the process of maturing.  Kids his age are unable to assess risks and consequences like an adult would.  Overwhelming scientific research shows that children lack maturity and a sense of responsibility compared with adults because they are still growing.  But for the same reason, they also have greater capacity for reform.

That’s perhaps not surprising.  As a society, we recognize that children and teens cannot and do not function as adults.  That’s why below a certain age you cannot vote, join the military, serve on a jury or buy cigarettes or alcohol….

Most courts have understood the Supreme Court’s 2010 decision to mean that the Constitution prohibits sentences like the one I gave to Bostic.  While I did not technically give him “life without parole,” I placed on his shoulders a prison term of so many years combined that there is no way he will ever be considered for release.  He won’t become eligible for parole until he is 112 years old — which means he will die in prison, regardless of whether he rehabilitates himself or changes as he grows older.

I see now that this kind of sentence is as benighted as it is unjust.  But Missouri and a handful of other states still allow such sentences, and the Missouri courts have affirmed the sentence I handed down.

This week, the Supreme Court will consider whether to take Bostic’s case and, if the justices do, they will decide whether his sentence is an outcome the Constitution can countenance.  The court should take the case and give Bostic the chance I did not: to show that he has changed and does not deserve to die in prison for something he did when he was just 16.

Imposing a life sentence without parole on a child who has not committed murder — whether imposed in a single sentence or multiple sentences, for one crime or many — is wrong.  Bostic was immature, and I punished him for that.  But to put him, and children like him, in prison for life without any chance of release, no matter how they develop over time, is unfair, unjust and, under the Supreme Court’s 2010 decision, unconstitutional.