United States Supreme Court Justice Potter Stewart Stewart may be best known for a quotation from his opinion in the obscenity case of Jacobellis v. Ohio (1964).  Stewart wrote in his short concurrence that “hard-core pornography” was hard to define, but that “I know it when I see it.”  Can the same be said of remorse in sentencing?

There is an interesting new law review article on the subject of remorse:

Remorse and Demeanor in the Courtroom:

Cognitive Science and the Evaluation of
Contrition

Susan A. Bandes

DePaul University – College of Law

December 4, 2013

Abstract:

Although there is a rich legal literature on whether remorse should play a role in the criminal justice system, there is far less discussion of how remorse can be evaluated in the legal context — if indeed it can. There is ample evidence that perceptions of remorse play a owerful role in criminal cases. Whether a defendant is regarded as appropriately remorseful is often a determinative factor in criminal sentencing, including capital sentencing. And in capital cases, in which the defendant rarely testifies, the evaluation of remorse may be based entirely on the facial expression and body language of a defendant sitting silently in the courtroom. Yet the most basic questions about the evaluation of remorse have received little attention: what is it precisely that is being evaluated, and how adept are decision makers at evaluating it? What criteria are being applied and with what level of consistency and fairness?

There is evidence that the evaluation of remorse is particularly difficult across cultural, ethnic or racial lines, or where juvenile or mentally impaired defendants are being judged. But this troubling evidence leads to several larger questions. Is remorse (or the lack of remorse) something that can ever be accurately evaluated in a courtroom? If remorse is not susceptible to courtroom evaluation, is it feasible to bar decision-makers from considering it? And if evaluation of remorse is a permanent feature of the criminal justice system, what can be done to improve upon an evaluative process that is demonstrably riddled with error and bias?

The article considers these questions in light of findings in three flourishing areas of cognitive science: the field of interpretation of facial expressions and “micro” expressions (expressions difficult for the untrained eye to recognize), the study of the dynamics of empathy and empathic accuracy, and the study of implicit bias.

The Supreme Court of Massachusetts has struck down life sentences without parole for juveniles as unconstitutional.  The court said that scientific research shows that lifelong imprisonment for youths is cruel and unusual because their brains are not fully developed.

The court’s decision follows a ruling by the U.S. Supreme Court.

In 2012, the U.S. Supreme Court ruled that mandatory life sentences without parole for juveniles violate the Eighth Amendment’s ban on cruel and unusual punishment. The 5-4 decision came in the robbery and murder cases of two 14-year-olds in Alabama.

The United States Supreme Court said in that case that life without parole is an unconstitutionally disproportionate punishment when viewed in the context of the unique characteristics of juvenile offenders.

More than 100 former judges and prosecutors are urging Congress to adopt bipartisan legislation designed to relieve the nation’s overcrowded prisons by granting judges greater discretion to sentence non-violent drug offenders below the federal mandatory minimum.

“At the federal level, we need to address the parts of our sentencing policies that are not working. Over the past three decades, what we spend on federal incarceration has increased by more than 1100 percent. Despite this massive investment, federal prisons are nearly 40 percent over capacity,” wrote the former judges and prosecutors from across the country in a letter organized by The Constitution Project and delivered to Senators Dick Durbin (D-IL) and Mike Lee (R-UT) Senators   Durbin and Lee are the cosponsors of the Smarter Sentencing Act of 2013.

The Smarter Sentencing Act (S. 1410, H.R.3382) would authorize federal judges to impose a prison sentence below the statutory mandatory minimum for a broader category of non-violent drug offenses, would lower the mandatory minimum sentences for certain drug offenses, and would make retroactive the provisions in the Fair Sentencing Act of 2010 that reduced the disparity between sentences for crack and powder cocaine possession.

Judge Wayne Gorman has an interesting observation:

In Canada (Attorney General) v. Bedford, 2013 SCC 72, December 20, 2013, the Supreme Court of Canada declared the prostitution-related provisions found in sections 210, 212(1)(j) and 213(1)(c) of the Criminal Code of Canada to be inconsistent with the Canadian Charter of Rights and Freedoms and hence void.  In addition, the Court made a number of comments on the role of stare decisis.

In 1990, the Supreme Court of Canada rendered an advisory opinion in the Prostitution Reference, which upheld the constitutionality of the prohibitions on bawdy-houses and communicating — two of the three provisions challenged in this case.   The question became: was it open to the application judge to consider the arguments raised?

The Supreme Court held, at paragraphs 42 and 44, that “a trial judge can consider and decide arguments based on Charter provisions that were not raised in the earlier case; this constitutes a new legal issue. Similarly, the matter may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate…the threshold for revisiting a matter is not an easy one to reach. In my view, as discussed above, this threshold is met when a new legal issue is raised, or if there is a significant change in the circumstances or evidence. This balances the need for finality and stability with the recognition that when an appropriate case arises for revisiting precedent, a lower court must be able to perform its full role.”

The Supreme Court concluded (at paragraph 45):

It follows that the application judge in this case was entitled to rule on whether the laws in question violated the security of the person interests under s. 7 of the Charter. In the Prostitution Reference, the majority decision was based on the s. 7 physical liberty interest alone. Only Lamer J., writing for himself, touched on security of the person — and then, only in the context of economic interests. Contrary to the submission of the Attorney General of Canada, whether the s. 7 interest at issue is economic liberty or security of the person is not “a distinction without a difference” (A.F., at para. 94). The rights protected by s. 7 are “independent interests, each of which must be given independent significance by the Court” (R. v. Morgentaler, [1988] 1 S.C.R. 30, at p. 52). Furthermore, the principles of fundamental justice considered in the Prostitution Reference dealt with vagueness and the permissibility of indirect criminalization. The principles raised in this case — arbitrariness, overbreadth, and gross disproportionality — have, to a large extent, developed only in the last 20 years.”

 

Informal Collateral Consequences

Wayne A. Logan

Florida State University – College of Law

October 20, 2013

88 Washington Law Review 1103 (2013)

Abstract:

This essay fills an important gap in the national discussion now taking place with regard to collateral consequences, the broad array of non-penal disabilities attaching to criminal convictions. In the wake of the Supreme Court’s landmark 2010 decision in Padilla v. Kentucky, efforts are now underway to inventory collateral consequences imposed by state, local, and federal law. Only when the full gamut of such consequences is known, law reformers urge, can criminal defendants understand the actual impact of their decision to plead guilty.

The increased concern over collateral consequences, while surely welcome and important, has however been lacking in a key respect: it has ignored the many adverse social, medical and economic consequences of conviction, experienced by individuals independent of formal operation of law. This essay augments the consciousness-raising effort now under way and makes the case that informal, and not just formal collateral consequences of conviction, should figure in post-Padilla policy efforts to achieve a fairer and more transparent criminal justice system.

The AP reports:

Canada’s highest court struck down the country’s anti-prostitution laws in their entirety Friday, including against keeping a brothel.

The 9-0 Supreme Court ruling is a victory for sex workers seeking safer working conditions because it found that the laws violated the guarantee to life, liberty and security of the person. But the ruling won’t take effect immediately because it gave Parliament a one-year reprieve to respond with new legislation.

Prostitution isn’t illegal in Canada, but many of the activities associated with prostitution are classified as criminal offences.”

Chief Justice Beverley McLachlin, writing for a unanimous court, stressed that the ruling is not about whether prostitution should be legal or not, but about whether Parliament’s means of controlling it infringe the constitutional rights of prostitutes.“Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes,” she wrote.

“The prohibitions all heighten the risks. . . . They do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky – but legal – activity from taking steps to protect themselves from the risks.

The opinion can be found here.

For some trial judges, figuring out how to adequately oversee effective assistance in plea bargaining is daunting.  There is risk that you invade the attorney-client privilege, and there is risk that you really don’t know the case as a well-prepared defense counsel.  So, when in doubt, try reading:

Using Outcomes to Reframe Guilty Plea Adjudication

Anne R. Traum

University of Nevada, Las Vegas, William S. Boyd School of Law

November 4, 2013

Florida Law Review, Vol. 65, 2014 Forthcoming

UNLV William S. Boyd School of Law Legal Studies Research Paper

Abstract:

The Supreme Court’s 2012 decisions in Lafler v. Cooper and Frye v. Missouri lay the groundwork for a new approach to judicial oversight of guilty pleas that considers outcomes. These cases confirm that courts possess robust authority to protect defendants’ Sixth Amendment right to effective counsel and that plea outcomes are particularly relevant to identifying and remedying prejudicial ineffective assistance in plea bargaining. The Court’s reliance on outcome-based prejudice analysis and suggestions for trial court level reforms to prevent Sixth Amendment violations set the stage for trial courts to take a more active, substantive role in regulating guilty pleas. This Article traces these significant doctrinal shifts and argues that they supply both impetus and authority for trial courts to regulate guilty pleas by monitoring plea outcomes. This proposal builds on market-based concepts while strengthening the judicial role in safeguarding constitutional values. By monitoring outcomes, courts can detect and correct factors in the plea market, like prosecutorial overreaching and deficient defense counsel, which can distort the parties’ ability to negotiate fair results. Outcomes monitoring is justified for practical reasons because it builds on courts’ expertise and unique place in the plea markets, it can be implemented at the trial court level, it reinforces courts’ traditional sentencing authority, and it can prevent litigation of prejudicial ineffective assistance in post-conviction proceedings.

The opinion of the California Court of Appeals began by succinctly stating there are limits to what a trial judge can do:

An attorney’s website advertised her success in two cases raising issues similar to those she was about to try here. The trial court admonished the jury not to “Google” the attorneys or to read any articles about the case or anyone involved in it. Concerned that a juror might ignore these admonitions, the court ordered the attorney to remove for duration of trial two pages from her website discussing the similar cases. We conclude this was an unlawful prior restraint on the attorney’s free speech rights under the First Amendment. Whether analyzed under the strict scrutiny standard or the lesser standard for commercial speech, the order was more extensive than necessary to advance the competing public interest in assuring a fair trial. Juror admonitions and instructions, such as those given here, were the presumptively adequate means of addressing the threat of jury contamination in this case.

The full opinion is here.

You can go through a pretty long judicial career and never face litigation regarding protestors’ rights and police conduct.  But, if confronted with this type of litigation, good judges scramble to find the best authorities.

It is in that spirit that you might want to read this piece:

Fair Warning

Caleb M. Hayes-Deats

 United States Department of Justice – Southern District of New York

November 3, 2013

Abstract: 

Protesting has become an integral part of American politics, so much so that federal Courts of Appeals have recently restricted police officers’ power to arrest demonstrators who have concededly violated otherwise valid statutes and regulations. Specifically, courts have found that, where demonstrators may reasonably, yet mistakenly believe that police officers have permitted their conduct, officers must give “fair warning” before arresting or dispersing those demonstrators. In § 1983 suits, courts have even found that demonstrators’ right to fair warning is “clearly established.” While the right to fair warning may be clearly established, its doctrinal roots are not. Ordinarily, the requirement of fair warning, grounded in the Due Process Clause, guides courts in their application of statutes. The cases mentioned above, however, consider not the content of statutes — indeed, the statutes’ applicability is frequently conceded — but instead the conduct of police officers and demonstrators. As a result, the courts that have recognized demonstrators’ rights to fair warning have not clearly specified whether the First Amendment, the Fourth Amendment, or the Due Process Clause creates that right. Identifying the source of this right is more than an academic exercise. Such identification will help courts expound the right’s contours and determine its future application. Ultimately, this Article argues that courts have unconsciously employed the right to fair warning as a less sweeping form of First Amendment review, one that applies First Amendment principles to officers’ enforcement of a statute, rather than to the statute itself. Only by attributing the right to fair warning to the First Amendment can courts both explain existing doctrine and vindicate the principles that earlier decisions have recognized when invoking that right.

Richard Daniel Klein (Touro College – Jacob D. Fuchsberg Law Center) has posted A Criminal Quartet: The Supreme Court’s Resolution of Four Critical Issues in the Criminal Justice System (29 Touro L. Rev. 603 (2013)) on SSRN.

Here is the abstract:

The Supreme Court 2012 Term was one in which the Court tackled several of the most critical issues that arise in our criminal justice system. Perhaps most importantly, as the 50th Anniversary of the Court’s decision in Gideon v. Wainwright approached, Court addressed the problems presented by counsel who had not provided the effective assistance of counsel during the plea bargaining process. Whereas it was common knowledge that the vast majority of cases in the criminal courts of this country are resolved by plea bargaining, the Court had never required that court-appointed counsel provide competent advice when recommending rejection of a plea offer by the prosecution. It had not even been constitutionally required that counsel communicate to his client the existence of an offer that entailed a reduced sentence were the defendant to plead guilty. The Court also addressed the matter of what action by counsel would constitute abandonment of the client in the post-conviction phase of a case where the client had received the death penalty. And, finally, the Court considered what had remained an unresolved issue: was it constitutional to impose a sentence of life without parole for a juvenile who had been convicted of murder. This article provides analysis of the Court’s handling of these four critical issues.