If there is anything that binds judges in solidarity, the issue of judicial independence may well be at the top of the list. And so when you see that immigration judges filed a formal grievance against the attorney general, one might expect that quite a few judges would (or should) become concerned.

The formal grievance against Attorney General Sessions claims he is trying to influence the results of cases before a Philadelphia-based judge whom Trump officials say is not processing cases quickly enough. The Justice Department says, in response, that the judge, Steven Morley, is himself under investigation for possible violations of “processes and practices.” See articles from USA Today and CNN.


Should AJA Be Concerned About What Is Happening In West Virginia?

posted by Judge_Burke @ 14:00 PM
August 17, 2018

It is frankly difficult to be sympathetic to a Supreme Court justice who spends over $30,000 on a couch or a Supreme Court justice who outsourced the writing of her opinions to a private law firm. Impeachment of Supreme Court justices is rare. It is unheard of to impeach an entire court.

From Cambell Robertson at the New York Times:

CHARLESTON, W.Va. — The whole episode began with office renovations and a $32,000 dark blue suede sectional sofa, accented with more than $1,000 worth of throw pillows. Now West Virginia’s entire Supreme Court is being impeached.

Late Monday night, after a long day of discussion and at times testy debate, the West Virginia House of Delegates passed 11 articles of impeachment against the four sitting justices of the Supreme Court of Appeals, the state’s highest court.

Advocates for the impeachment, mostly Republicans, who hold a large majority in the House, said the scale of the justices’ misconduct, though not illegal, called for an extraordinary response, a process the Legislature has resorted to only once over the past hundred years.

“They think they’re better than everybody in this state that works a blue collar job!” thundered Delegate Michael Folk, a Republican, tapping into the populism that runs deep in the state. “The average citizen in the state of West Virginia is appalled.”

View the whole story here.




A Tool To Help Predict Future Criminal Behavior?

posted by Judge_Burke @ 18:12 PM
August 16, 2018

Phrenology is a pseudomedicine primarily focused on measurements of the human skull, based on the concept that the brain is the organ of the mind, and that certain brain areas have localized, specific functions or modules. At one point there was a belief that phrenology could revolutionize the criminal justice system. Nobody really believes that the shape of our heads are a window into our personalities anymore. But the idea which was developed by the German physician Franz Joseph Gall in 1796  was hugely popular in the 19th century. So what about a modern version of phrenology?

As risk assessment tools become ever more integral to the criminal justice system, some neuroscientists are looking to the brain to aid in the effort. They call it “neuroprediction,” the science of using MRIs to determine whether someone is likely to commit more crime. Critics warn the science is not ready for prime time. Defense attorneys worry it will make juries less sympathetic. But proponents say neuroprediction accounts for differences in individual brains much better than a broad category like age does. In collaboration with Tonic, Andrew Calderon has the story.


What Role Should Statistical Evidence Play In Combating Racial Inequality?

posted by Judge_Burke @ 14:00 PM
August 15, 2018

John Charles Boger (University of North Carolina School of Law) has posted Mccleskey V. Kemp: Field Notes from 1977-1991 (Northwestern University Law Review, Vol. 112, 2018) on SSRN. Here is the abstract:

This Essay is an expanded version of a keynote address to a Symposium hosted by the Northwestern University School of Law. It examines the handiwork of the Supreme Court in the McCleskey v. Kemp (1987) case and the adverse impact of McCleskey on the subsequent judicial consideration of statistical evidence — even of widespread racial discrimination — in the capital and criminal justice systems. As one member of the legal team who brought the McCleskey case, my contribution was to speculate on how and why the Court might have disregarded such meticulously documented and unrebutted patterns of racial disparities in capital sentencing, despite the Justices’ formal condemnation of racial discrimination in principle and their occasional intervention to curb particularly egregious acts of racial injustice. This Essay ends by encouraging social scientists and legal scholars to continue to uncover and oppose patterns of racial discrimination that remain widespread in the administration of criminal justice.



How Does My State Compare to Others Regarding Public Safety?

posted by Judge_Burke @ 14:00 PM
August 14, 2018

It is not an easy question…or, more accurately, it is not an easy question to answer. But, thanks to the Council on State Governments, it may be easier than you think.

The Council on State Governments Justice Center has released the 50-State Report on Public Safety, a first of its kind, web based resource that combines extensive data analysis, case studies and recommended strategies to help policymakers address their state’s specific public safety challenges. Here is an excerpt from the report:

Although crime rates across the country are near all-time lows, each state faces a unique combination of public safety challenges, including increasing crime rates in some communities, growing numbers of people who have mental illnesses entering county jails and state prisons, spiking opioid and other drug-related deaths, high recidivism rates, rising correctional populations and costs, pervasive barriers to employment and housing for people with criminal records, and more. These challenges may appear overwhelming, but many states are using innovative approaches to tackle them and are achieving results.


Should I Just Go Search On The Internet?

posted by Judge_Burke @ 14:00 PM
August 13, 2018

In an age when smartphones are ubiquitous, and the ability to seek the answer to any question at any time has almost made “Google” a generic term, the paper-based information resources of years past have given way to voice search and virtual home assistants. Thus, despite the legal profession often lagging behind other industries on the tech front, its institutions are slowly being transformed by this ready access to limitless information, including within the judiciary.

It is perhaps for this reason that late last year, the American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility (the “Committee”) issued an advisory opinion on the subject of internet research by judges, or more specifically, when such research is permissible and when it is not. The opinion represents a renewed assertion by the ABA that judicial use of independent internet research presents challenges that are distinct from those associated with other extrinsic sources of information, which have long found their way into judicial reasoning.

The ABA’s recent opinion provides a clear explanation of the legal framework informing its conclusions, though its guidelines revolve around the somewhat nebulous law of judicial notice. Possibly recognizing the practical difficulties of complying with rules that are anchored to such an arguably messy body of law, the Committee provides a series of hypotheticals and questions that members of the judiciary may refer to in determining the propriety of running a case-related Google search at any given time. It also offers a more cohesive overview of the legal doctrines implicated by judicial use of internet research than much of the relevant legal authority has done to date, acknowledging the intersection of ethical, evidentiary, and constitutional questions at issue in this context. This sort of guidance is especially critical as the role of judicial internet research in legal proceedings continues to expand, bringing with it important consequences for core legal system values including due process, transparency, and an impartial judiciary.​

The full article, written by , can be found at Justia.


A Perplexing Challenge For Judges: Is The Defendant Competent?

posted by Judge_Burke @ 14:00 PM
August 12, 2018

Richard J. Bonnie (University of Virginia – School of Law) has posted Competence for Criminal Adjudication: The Emerging Significance of Decisional Competence on SSRN. Here is the abstract:

The practice of assessing and adjudicating competence for criminal adjudication in the United States developed largely without assistance from the U.S. Supreme Court or other appellate courts for most of the nineteenth and twentieth centuries. However, the need for appellate guidance became evident in the 1980s, especially regarding the significance of mental or emotional conditions that can impair capacity for rational decision-making. In a series of articles in the early 1990s, I called attention to emerging issues regarding “decisional competence” and speculated about possible approaches for resolving them. During the past twenty-five years, some governing principles have come into view, but important issues remain unresolved. After a brief review of the historical and conceptual foundations of the competence requirement, the article focuses on two decisions in which the Supreme Court has addressed decisional competence.

In Godinez v. Moran (1993), the Court ruled that a pretrial finding that the defendant was competent to stand trial established that he was competent to waive representation by counsel and plead guilty because the test for competence is the same in all three contexts. However, in Edwards v. Indiana (2007), the Court held that a defendant who is competent to stand trial while being represented by counsel may not be competent to represent himself at trial. Although these decisions are not strictly contradictory, they are in deep tension with one another. This article attempts to set the law on a coherent path by highlighting the significance of doubts about decisional competence in both cases. In so doing, it sometimes draws on a personal account of the recent intellectual and scientific history of competence for criminal adjudication.


What To Think About The United States Supreme Court

posted by Judge_Burke @ 14:00 PM
August 11, 2018

Tonja Jacobi and Ross Berlin (Northwestern University – Pritzker School of Law and Minnesota Court of Appeals #315B) have posted Supreme Irrelevance: The Court’s Abdication in Criminal Procedure Jurisprudence (UC Davis Law Review, Vol. 51, No. 3, 2018) on SSRN. Here is the abstract:

Criminal procedure is one of the Supreme Court’s most active areas of jurisprudence, but the Court’s rulings are largely irrelevant to the actual workings of the criminal justice system. The Court’s irrelevance takes two forms: objectively, on the numbers, its jurisprudence fails to protect the vast majority of people affected by the criminal justice system; and in terms of salience, the Court has sidestepped the major challenges in the United States today relating to the criminal justice system. These challenges include discrimination in stops and frisks, fatal police shootings, unconscionable plea deals, mass incarceration, and disproportionate execution of racial minorities. For each major stage of a person’s interactions with the criminal justice system — search and seizure, plea-bargaining, and sentencing — the Court develops doctrines that protect only a tiny percentage of people. This is because the Court focuses nearly all of its attention on the small fraction of cases implicating the exclusionary rule, trial rights, and the death penalty, and it ignores the bulk of real-world criminal procedure — searches and seizures that turn up no evidence of crime, plea bargains that occur outside of the courtroom, and the sentencing of convicts for terms of years — leaving constitutional rights unrecognized and constitutional violations unremedied. Consistently, each issue the Supreme Court neglects has a disparate impact on traditionally disadvantaged racial minorities. Together, this constitutes an abdication of the Court’s responsibility.


ABA Speaks On Fines & Fees

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

The ABA House of Delegates overwhelmingly approved a set of guidelines Monday evening aimed at stopping incarceration of people solely because they can’t pay court fines and fees.


Robert Weiner, chair of the ABA Working Group on Building Public Trust in the American Justice System, moved Resolution 114 in the House. The resolution adopts the working group’s Ten Guidelines on Court Fines and Fees. The guidelines are provided to jurisdictions as a best-practices guide to avoiding creating debtors’ prisons in the ordinary course of administering justice. The working group that created them was a special project of outgoing ABA President Hilarie Bass.

More than 30 years ago, the Supreme Court ruled that jurisdictions may not incarcerate people for debt stemming from inability to pay fines and fees, according to Robert Weiner, chair of the ABA committee that recommended the guidelines. “Far too many state and local legislators treat the justice system like an ATM, imposing exorbitant fines and fees for civil code violations, traffic tickets, misdemeanors, and felonies in order to fund the government,” said Joanna Weiss, co-director of the Fines & Fees Justice Center. “People who can’t immediately pay are trapped in a cycle of punishment and poverty they can rarely escape, hurting individuals, families and communities.” Jaime Hawk of the Washington State Bar Association said, “This criminalization of poverty must end.”

“And most of all, these guidelines vindicate a fundamental principle that poverty is not a crime,” said Weiner, who also chairs the Section of Civil Rights and Social Justice. “I urge you to adopt Resolution 114.”

The resolution attracted no opposition but several speakers in favor. One was Jaime Hawk of the Washington State Bar Association, which co-sponsored the resolution along with the King County Bar Association in Seattle as well as several other organizations.

“As a former state and federal defender, I have seen firsthand the injustices that routinely occur as our government seeks to cash in on those who can least afford to pay fines and fees,” Hawk said. “This criminalization of poverty must end, … and we, as the ABA, are lead[ing] the way.”

Resolution 114 passed easily.



When You Can Legally Require A Defendant To Remain Drug Free?

posted by Judge_Burke @ 14:00 PM
August 7, 2018

It seems so simple but perhaps it is not. Conditions of probation at some level need to be reasonably related to the defendant and/or the offense. So the decision of the Massachusetts Supreme Judicial  Court may not be shocking to anyone (but the defendant). The Massachusetts Supreme Judicial Court Massachusetts v. Eldred, No. SJC–12279 (Mass. July 16, 2018) (available here). The opinion starts this way:

Following a probation violation hearing, a judge in the District Court found that the defendant, Julie A. Eldred, had tested positive for fentanyl, in violation of a condition of her probation requiring her to abstain from using illegal drugs. The judge ordered that the conditions of her probation be modified to require her to submit to inpatient treatment for drug addiction. The defendant appeals from that finding and disposition.  The judge also reported a question drafted by the defendant concerning whether the imposition of a “drug free” condition of probation, such as appeared in the original terms of defendant’s probation, is permissible for an individual who is addicted to drugs and whether that person can be subject to probation violation proceedings for subsequently testing positive for illegal drugs.

We conclude that, in appropriate circumstances, a judge may order a defendant who is addicted to drugs to remain drug free as a condition of probation, and that a defendant may be found to be in violation of his or her probation by subsequently testing positive for an illegal drug. Accordingly, we affirm the finding that the defendant violated her probation and the order requiring her to submit to inpatient treatment for her addiction.