Daniel S. McConkie Jr. (Brigham Young University – J. Reuben Clark Law School) has posted Judges as Framers of Plea Bargaining on SSRN.

Here is the abstract:

The vast majority of federal criminal defendants resolve their cases by plea bargaining, with minimal judicial input or oversight. This presents significant issues concerning transparency, fairness, and effective sentencing. Federal prosecutors strongly influence sentences by the charges they select. The parties bargain informally outside of court and strike a deal. But defendants often plead guilty without a realistic understanding of their likely sentencing exposure. Instead, they plead guilty based on their best guess as to how judges will resolve certain issues and their own fear that they could get an unspecified but severe post-trial sentence. The judge is often reluctant to reject the parties’ deal, partly because the judge may have little information about the case, and partly because the judge lacks the resources for courtroom-clogging jury trials. What is needed is a public, court-supervised, advocacy procedure early in the case to guide the parties in considering key sentencing issues and fashioning a just and reasonable sentence based on the judge’s feedback.

“Last Words: A Survey and Analysis of Federal Judges’ Views on Allocution in Sentencing”

The title of this post is the title of this notable new article available via SSRN co-authored by a federal judge and a law professor. The piece, by Mark Bennett and Ira Robbins, examines an arena of sentencing law and practice that rarely gets any attention.

Here is the abstract:

Allocution — the penultimate stage of a criminal proceeding at which the judge affords defendants an opportunity to speak their last words before sentencing — is a centuries-old right in criminal cases, and academics have theorized about the various purposes it serves. But what do sitting federal judges think about allocution? Do they actually use it to raise or lower sentences? Do they think it serves purposes above and beyond sentencing? Are there certain factors that judges like or dislike in allocutions? These questions — and many others — are answered directly in this first-ever study of judges’ views and practices regarding allocution.

The authors surveyed all federal district judges in the United States. This Article provides a summary and analysis of the participants’ responses. Patterns both expected and unexpected emerged, including, perhaps most surprisingly, that allocution does not typically have a large influence on defendants’ final sentences. Most of the judges agreed, however, that retaining this often-overlooked procedural right remains an important feature of the criminal-justice process.

This Article also synthesizes judges’ recommendations for both defendants and defense attorneys aiming to craft the most effective allocution possible. Critical factors include preparing beforehand, displaying genuine remorse, and tailoring the allocution to the predilections of the sentencing judge.

Court security is a legitimate concern but the seventh Circuit has an interesting opinion that shows there are limits.

Inmate’s shackles and prison uniform at trial necessitate new trial in excessive force case against prison guards:  Circuit Judge Richard A. Posner issued this ruling on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit.

Here is an exerpt:

The sight of a shackled litigant is apt to make jurors think they’re dealing with a mad dog; and just the contrast between a litigant’s wearing prison garb and his opponents’ wearing law enforcement uniforms is likely to influence the jury against the prisoner, and has long been recognized as being highly prejudicial. See, e.g., Holbrook v. Flynn, 475 U.S. 560, 568–69 (1986); Estelle v. Williams, 425 U.S. 501, 504–05 (1976); Illinois v. Allen, 397 U.S. 337, 344 (1970); Stephenson v. Wilson, 619 F.3d 664, 668–69 (7th Cir. 2010). Although the issue has arisen mainly in criminal (including post-conviction) cases, as in the cases just cited, it arises from time to time in civil cases as well, such as this case, and the prejudicial effect of visible shackling and prison clothing has been recognized in those cases too. See, e.g., Lemons v. Skidmore, 985 F.2d 354, 356–57 (7th Cir. 1993); Davidson v. Riley, 44 F.3d 1118, 1122– 23 (2d Cir. 1995); Holloway v. Alexander, 957 F.2d 529, 530 (8th Cir. 1992).

The abstract says it all:

This paper was written for judges to assist them in understanding: their obligations concerning Facebook and other social networking sites, including “friending” lawyers; the confidentiality of email, texts, and other e-communications; the use of the Internet by lawyers to research jurors or potential jurors; the use of the Internet by judges to research the facts and law; and how to admonish jurors not to use the Internet to research the case before them or to discuss it prior to deliberations.

The full paper is here.

Thanks to Minnesota Lawyer, judges (and lawyers) might be able to write better:

Legal writing guru Brian Wagner has a list of words or phrases all lawyers should do away with in their writing immediately.  He calls it his “verbal blacklist” and there are some familiar ones. Thankfully, “said”–the most useless word of all, makes the list.

said   As the past tense of say, this word is fine. As a fancy-pants substitute for the (such as said agreement), it isn’t fine at all. It’s foolish. It doesn’t add one iota of precision. It makes you sound like a parody of law-talk.

and/or   Is it a word? Is it a phrase? American and British courts have held that and/or is not part of the English language. The Illinois Appellate Court called it a “freakish fad” and an “accuracy-destroying symbol.” The New Mexico Supreme Court declared it a “meaningless symbol.” The Wisconsin Supreme Court denounced it as “that befuddling, nameless thing, that Janus-faced verbal monstrosity.” More recently, the Supreme Court of Kentucky called it a “much-condemned conjunctive-disjunctive crutch of sloppy thinkers.” Now if Apple can just had the list of words to the spell check function on judge’s computers there will be far more readable orders.

Linda Greenhouse has an essay in The New York Times that begins:

Someone at the Supreme Court got an assignment last week: start drafting a majority opinion to answer the question whether a for-profit company can claim a religious exemption from the federal requirement to include particular products in any employee insurance plan.

Ms. Greenhouse is the winner of the 1998 Pulitzer Prize. She writes on alternate Thursdays about the Supreme Court and the law. Ms. Greenhouse reported on the Supreme Court for The New York Times from 1978 to 2008. She now teaches at Yale Law School.

Thanks to the Minnesota Lawyer, we know that Justice Stevens is a fan of Dave Barry.

In an interview with the New York Times Review of Books, former Supreme Court Justice John Paul Stevens said that the last book to make him laugh was by humorist Dave Barry.

Stevens said that the best writers on the subject of law are Justice Stephen Breyer and Judge Richard Posner, and he said that he reads U.S. Supreme Court opinions when he travels.  Ever the careful justice, he twice lauded the plays and works “attributed to William Shakespeare.”

Gavel to Gavel reports:

A century old law to require Minnesota judges render their decisions within 90 days or forfeit their pay looks to be on its way towards repeal. The Senate Judiciary Committee on March 28 approved SB 2718, a bill that would eliminate the 90-days-or-no-pay statute that had been around since at least 1905 (prior discussion here). Testimony (2:45:00) was heard that the provision had never been used in 45 years.

SB 2718, as amended, keeps the 90 days for a disposition language, but provides that the judiciary’s Board of Judicial Standards is to adopt rules for compliance. In the event that the Board of Judicial Standards fails to do so, the bill lays out an enforcement mechanism. That mechanism, again if the Board doesn’t adopt an alternative, would be:

• The Board of Judicial Standards and the chief justices of the judicial districts would review judge’s compliance monthly, not at least annually
• A first infraction would result in notification to the chief judge of the judicial district
• A second infraction within 5 years would result in the chief judge and the judge who committed the infraction developing a written plan with the judge to remedy the current non-compliance and avoid future ones. A failure to comply with the plan would be sent to the Board by the chief judge.
• A third infraction within 5 years of the first would result in the Board taking immediate action without referral to the chief judge (the chief judge would be notified).
• Nothing in this would preclude the chief judge to take appropriate action under the Code of Judicial Conduct.
• Should the Board receive a complaint alleging a serious violation of the time standard, the statute would not limit the Board’s ability to act on it.

Meanwhile a similar House bill HB 2687 was approved by the House Judiciary Committee on March 11 and the House Civil Law Committee on March 19.

Jeffrey Bellin (William & Mary Law School) has posted The Inverse Relationship between the Constitutionality and Effectiveness of New York City ‘Stop and Frisk’ (Boston University Law Review, Forthcoming) on SSRN.

Here is the abstract:

New York City sits at the epicenter of an extraordinary criminal justice phenomenon. While employing aggressive policing tactics, such as “stop and frisk,” on an unprecedented scale, the City dramatically reduced both violent crime and incarceration – with the connections between these developments (if any) hotly disputed. Further clouding the picture, in August 2013, a federal district court ruled the City’s heavy reliance on “stop and frisk” unconstitutional. Popular and academic commentary generally highlights isolated pieces of this complex story, constructing an incomplete vision of the lessons to be drawn from the New York experience. This Article brings together all of the strands – falling crime, reduced incarceration and aggressive policing – analyzing the hazy historical and empirical connections between them, and evaluating the legal implications of a crime-fighting policy that might “work” to reduce both crime and incarceration precisely because of the factors that render it unconstitutional.

If there is one thing a lot of judges do, it is fine people.

Some courts proudly boast of all the “revenue” that the courts collect and others bemoan the lack of recognition for the effort they make at collecting fines. Most judges try to be reasonable in the amount they fine people, but there are occasions where judges go too far.

So, is it important if you are a judge who fines people  – or you are an appellate judge who reviews the relatively infrequent appeal of a fine – to know excessive fine clause jurisprudence?

The title of this post is the title of this notable new paper by Beth Colgan now available via SSRN.

Here is the abstract:

Millions of American adults and children struggle with debt stemming from economic sanctions issued by the criminal and juvenile courts. For those unable to pay, the consequences — including incarceration, exclusion from public benefits, and persistent poverty — can be draconian and perpetual. The Supreme Court has nevertheless concluded that many of these concerns lie outside the scope of the Eighth Amendment’s Excessive Fines Clause. In interpreting the Clause, the Court relied upon a limited set of historical sources to restrict “fines” to sanctions that are punitive in nature and paid exclusively to the government, and to define “excessive” as referring to — either exclusively or primarily — the proportionality between the crime’s gravity and the amount of the fine.

This Article takes the Court at its word by assuming history is constitutionally relevant, but it challenges the Court’s limited use of history by providing the first detailed analysis of colonial and early American statutory and court records regarding fines. This robust historical analysis belies the Court’s use of history to announce historical “truths” to limit the scope of the Clause, by showing significant evidence that contradicts those limitations.

The Article uses the historical record to identify questions regarding the Clause’s meaning, to assess the quality of the historical evidence suggesting an answer to such questions, and then to consider that evidence — according to its value — within a debate that incorporates contemporary understandings of just punishment. Under the resulting interpretation, the historical evidence articulated in this Article would support an understanding of a “fine” as a deprivation of anything of economic value in response to a public offense. “Excessive,” in turn, would be assessed through a broad understanding of proportionality that takes account of both offense and offender characteristics, as well as the effect of the fine on the individual. The proposed interpretation more faithfully reflects the history and its limitations, and broadens the Clause’s scope to provide greater individual protections.