The Freudian slip is named after Sigmund Freud who wrote in his 1901 book The Psychopathology of Everyday Life about his theory that sometimes a verbal mistake reveals a repressed belief, thought, or emotion. Whether a particular utterance is really a Freudian slip or even if the theory is valid can be left for debate another day. Suffice it to say every judge knows there are days when you say something that just did not come out right. One of the most interesting blogs available is How Appealing which is written by Howard Bashman. He had a recent post that illustrates either a judge who just had a slip of the tongue or maybe a judge who proved the validity of Freud’s theory:
“After Ontario Superior Court judge’s slip-up, appeal seeks new trial for ‘Mr. Guilty'”: In today’s edition of The Toronto Globe and Mail, Kirk Makin has an article that begins, “Shortly before a Toronto jury left the courtroom to start deliberations at Prinze Wilson’s cocaine-trafficking trial last spring, Madam Justice Faye McWatt of the Ontario Superior Court stressed the need to respect his presumption of innocence. ‘It is only defeated if, and when, Crown counsel has satisfied you beyond a reasonable doubt that Mr. Guilty — I’m sorry, that Mr. Wilson — is guilty of the crime charged,’ Judge McWatt said.”

There is an interesting and thus far very successful community court in San Francisco.

In 2007, the San Francisco Superior Court, in partnership with the Mayor’s office, undertook a needs assessment in the city’s tenderloin district. Many of the defendants who appear in the Court are homeless, many have substance abuse problems and a myriad of other social service needs. The other day, a fine levied for a minor infraction illustrates the extremes that states have gone to in terms of imposing fees and surcharges onto minor cases involving people with no realistic ability to pay. The judge fined the defendant $100, but then the clerk pointed out to the judge that with the fees and surcharges, the total would be over $400. The problem of fines and surcharges that far surpass the ability of defendants to pay has been an increasing dilemma that courts throughout the country are facing. 

Rebekah Diller is deputy director of the Justice Program at the NYU School of Law’s Brennan Center for Justice. She recently had a thoughtful analysis of this dilemma: “As states struggle to close persistent budget gaps, they are casting about for ways to raise revenue. One of the more penny-wise, pound-foolish schemes is to levy more fees on a group least able to pay: people involved in the criminal justice system. Just this year, Arizona instituted a $25 background check fee for any family member who wants to visit an inmate in state prison, a move made despite significant evidence that involvement with family is key for preventing recidivism.  Arizona is not alone. In Criminal Justice Debt: A Barrier to Reentry, a report published last year by the Brennan Center for Justice, we surveyed recent fee practices in 15 states and found a disturbing uptick in both the dollar amount and the number of fees imposed on criminal defendants. These fees kick in at almost all stages throughout the process: Fees may be charged for one’s public defender and prosecution, for court costs upon conviction, each day in jail or prison, and for each month of parole or probation supervision.  These fees may seem small in isolation—$25 here, $50 there—but as “The Unintended Sentence of Criminal Justice Debt” demonstrates, they can have harmful and lasting consequences. The amounts add up quickly, often totaling hundreds or thousands of dollars. Collections efforts take an added toll, generating additional fees and interest, often leading to driver’s license suspensions and wrecked credit histories. At its worst, inability to pay criminal fees paves the path back to prison by prompting violations of parole or probation, arrests for failure to appear at fee-related hearings, or other new offenses.  As the human costs mount, there is scant information about the repercussions of imposing these financial costs. Jurisdictions have looked at only one side of the ledger—the amount of money they expect to generate—without thinking through what happens when significant numbers of individuals cannot pay.

It is time to rethink the problem. First, states should exempt upfront those who lack the means to pay. This is not only the just thing to do, it’s the smart thing. Jurisdictions would then stop spending scarce resources to chase down debt that is, in many cases, simply not payable.  Second, as “The Unintended Sentence” suggests, evidence-based analysis and programming are desperately needed. For individuals who cannot pay debts such as restitution and fines that are part of their sentence, credit for well-designed community service and other programming could offer a way out of the vicious debt cycle. The rigorous study associated with a demonstration project can help other jurisdictions reform their criminal debt practices too.

I’d like to thank Judge Burke for inviting me to write a post for the AJA blog about my organization, the Institute for Justice, and what we do.  Judge Burke and I connected when he cited a report I co-authored called “Government Unchecked” in his spirited response to Newt Gingrich’s assault on judicial independence.   

The Institute for Justice is a public interest law firm that litigates to secure economic liberty, property rights, free speech, and school choice.  We believe the Constitution imposes important limits on government power that can only be enforced by a properly engaged judiciary.  By “properly engaged,” we mean judges who decide cases based on the neutral application of law to evidence presented in court.  The opposite of judicial engagement is judicial abdication—the failure to properly enforce constitutional limits on government power.

I believe one of the clearest examples of judicial abdication in recent years is the Supreme Court’s 2005 decision in Kelo v. City of New London, a case I helped litigate with my colleagues at the Institute for Justice.  At issue in Kelo was whether the government’s mere hope that using eminent domain to compel the transfer of property from one private owner to another might increase taxes or create jobs constitutes a “public use” within the meaning of the Fifth Amendment.  The Supreme Court, by a 5-4 margin, said yes.  Every state supreme court to consider the question under analogous state constitutional provisions since then has said no.  Polls show that Americans were outraged by Kelo, and for good reason: the idea that the Constitution permits government officials to engage in real estate speculation with people’s homes and businesses is utterly alien to our traditions and our uniquely American values.

For reasons I hope to develop in subsequent posts, I believe the underlying spirit of Kelo—namely, that courts should defer to legislatures and exercise “restraint” in deciding constitutional cases—may actually be encouraging the kind of attacks on judicial independence that we have been seeing from Newt Gingrich and others.  Simply put, if judges doubt their ability to properly interpret and apply the Constitution in most settings, why shouldn’t legislators?

Professor Wexlex is an internationally known scholar whose career has in recent years focused on therapeutic  jurispudence. When he reports that something is worth reading, both academics and practitioners should take note.  He recently noted that

Carolina Academic Press ( www.cap-press.com<http://www.cap-press.com> ) has just published an excellent volume ,edited by Edna Erez, Michael Kilching, and Jo-Anne Wemmers, entitled Therapeutic Jurisprudence and Victim Participation in Justice: International Perspectives (2011).

The book breaks important (and previously neglected)new ground, turning a TJ lens on the topic of victims; there are diverse views and careful and nuanced discussions of many issues, and the chapter editors come from a number of different countries. It is dedicated to the memory of Bruce Winick.

A lot of lawyers (to their client’s peril) underestimate the problem with unfocused briefs. The issue was highlighted in a recent post by Orin Kerr in The Volokh Conspiracy

From the introduction to United States v. Bansal, a recent Third Circuit decision authored by Judge Aldisert:

We note at the outset that Bansal’s and Mullinix’s briefs raise approximately 75 issues for our consideration. Although the government responds by calling to our attention no fewer than 339 cases drawn from the span of more than 120 years (as well as 49 separate statutes and one book, for good measure), we reject any implication that we should pick up their torch and embark upon a similar adventure ourselves. We address only those issues we deem worthy of discussion, and only to the extent we deem necessary to explain our reasoning.

With that said, Judge Aldisert’s opinion is still 69 pages long